Souter v. BD. OF ZONING APPEALS OF CITY OF GRAND RAPIDS

234 N.W.2d 562, 63 Mich. App. 451, 1975 Mich. App. LEXIS 1186

• Court: Michigan Court of Appeals
• Decided: August 14, 1975
• Docket: Docket 22596
• Status: Published

Opinions

N. J. Kaufman, J.

We adopt the facts recited by the dissent. We affirm the trial court’s approval of the Board of Zoning Appeals’ (Board) issuance of a building permit to defendant Naegele Outdoor Advertising Co. (Naegele).

We find, for the reasons given by the dissent, that Naegele’s construction of the sign was, at the time it was built, permitted by the relevant provisions of the Grand Rapids City Code. Notwithstanding this fact, plaintiff and the dissent claim that the issuance of the building permit v/as done without authority. They rely on City Code ch 61, art 23, § 5.273, which provides:

"No oversight or dereliction on the part of the Director of Community Improvement and Inspection Services or his authorized assistants or any official or employee of the City of Grand Rapids vested with the duty or authority to issue permits or licenses shall legalize, authorize, waive or excuse the violation of any of the provisions of this ordinance. No permit, nor any license for any use, building or purpose shall be issued by any official or employee of the City of Grand Rapids if the same would be in conñict with the provisions of this ordinance. Any person or license so issued shall be null and void.” (Emphasis supplied.)

They contend that Naegele’s failure to get the planning commission’s approval was "in conflict with the provisions of [the] ordinance” and rendered null and void the permit issued by the Board.¹

We disagree. Our reading of the City Code’s procedure for obtaining approval to construct a sign convinces us that the Board’s approval vitiated Naegele’s failure to acquire the city planning commission’s imprimatur. First, § 5.273 is a general provision. As such, it must be read in the context of art 19, that provision which specifically governs planned industrial districts. The role of the planning commission cannot be viewed in a vacuum. It is part of a procedure designed to insure that a proposed sign meets the specifications dictated by the ordinance and will not cause aesthetic or safety problems. The planning commission has limited discretion in this scheme. Its sole function is to ensure that the proposed sign satisfies the design specifications detailed by the ordinance. Its approval "shall be given when such signs meet all the requirements therefor under the City Code”. Grand Rapids City Code, ch 61, art 20, § 5.233(6)(d). (Emphasis supplied.) If the requirements are met, the commission’s duty to approve the permit becomes purely ministerial. Bills v Grand Blanc Township, 59 Mich App 619; 229 NW2d 871 (1975).

The Board represents the final arbiter in the administrative process. It is important to remember that flexibility is the essence of this procedure, as it should be for all administrative process. Once the Board has made sure that no technical, aesthetic or safety problems exist, the function of the* procedure has been fulfilled. This fulfillment, not a rote-step of procedural requirements, is the purpose behind the entire procedure. We do not see why the zoning board cannot shorten the procedure as long as it ensures that the applicant has met all of the substantive ordinance requirements. The Board has the final word on all planning commission decisions. As such, we cannot consider the Board’s determination that the ordinance requirements were satisfied as an improper usurpation of the commission’s essentially ministerial function.

Second, we read § 5.273 as inapplicable to this type of case. Section 5.273 makes "null and void” a permit issued "in conflict with the provisions of this ordinance”. We find that the "provisions” cited are substantive, not procedural ones. Section 5.273 is essentially a codification of the principal that the issuance of a building permit in violation of substantive provisions of a zoning ordinance does not give the builder the right to use the premises in violation of the ordinance nor does it estop the city from enforcing the ordinance. Fass v Highland Park, 326 Mich 19; 39 NW2d 336 (1949). We cannot read the section as making absolute compliance with procedural formalities a prerequisite to approval and as removing from the Board of Zoning Appeals the Ability to waive such formalities.

In addition to finding that statutory construction favors defendant, we find from a review of the record that the great weight of the equities are on the side of defendant Naegele. Naegele built a sign that complied with the existing ordinance. It did so in reliance on an apparently legitimate approval by the building inspector, an officer of the city. This is not a case where an applicant claimed reliance on a permit issued for a purpose not authorized by the ordinance. Bingham v Flint, 14 Mich App 377; 165 NW2d 628 (1968). Indeed, the city ordinance could reasonably be read to require that the building inspector, not the applicant, has the onus of obtaining planning commission approval. Naegele should not be punished for this failure. As the late Chief Justice Thomas M. Kavanagh noted, in analyzing the vesting of a nonconforming use:

"Once a city or township issues a valid permit to an applicant, that applicant has every reason and right to rely thereon in his business dealings. Permits are not issued by local authorities when the contemplated use for which the permit is issued conflicts with a local zoning ordinance. * * * [H]e has within his possession an official document of the local community authorizing him to proceed with his contemplated project.

"While it is true that the issuance of a permit itself will not give vested rights to a nonconforming use to the holder thereof, the possession thereof, and substantial reliance thereon, will give such rights. And in determining whether or not there has actually been substantial reliance on the issuance of the permit, * * * equity demands that, at the very least, all actions which have been undertaken and completed by the holder of the permit prior to actual notification to him of the revocation of such permit must be considered.” Dingeman Advertising, Inc v Algoma Township, 393 Mich 89, 98-99; 223 NW2d 689 (1974).

Ordering Naegele’s sign to be torn down under these circumstances would be a most inequitable holding.

Affirmed. Costs to defendants.

D. E. Holbrook, J., concurred.

1 We find that the dissent was incorrect in citing § 5.233(4) as representing the procedure for obtaining approval to put up a freestanding business sign. That section pertains to the procedure for developing an entire lot, not for putting up a sign. Under § 5.233(4), any signs to be erected as part of the development shall be made part of the site plan which must be submitted to the planning commission for its approval. Naegele was not developing a lot, but was putting up a free-standing sign. The procedure for doing this is specifically governed by § 5.233(6). That section sets physical specifications and, as does § 5.233(4), requires planning commission approval.