QUIGLEY v DEXTER TOWNSHIP
1. Zoning—Zoning Board of Appeals—Appeal and Error—Circuit Courts—Municipal Corporations—Statutes—Superintending Control—Certiorari—Townships—Question of Fact-Question of Law.
A zoning board of appeals established in a city under a statute renders final decisions that are generally reviewable by superintending control in circuit court and, in such cases, the scope of review is essentially that formerly had by certiorari; this is not the case, however, in townships, where zoning boards of appeal are established under a different statute which expressly provides that decisions of boards are not final and are to be reviewed both as to facts and law in circuit court (MCLA 125.288 etseq., 125.293,125.585).
2. Zoning—Appeal and Error—Circuit Court—Discretion—Zoning Boards.
On an appeal to circuit court from a township zoning board of appeals the circuit judge was in error when he opined: "However, courts should not impose their judgments in matters of discretion which are properly vested in Zoning Boards.”
3. Zoning—Zoning Board of Appeals—Appeal and Error—Circuit Courts—Townships—Statutes—Question of Law—Question of Fact.
Review in circuit court of a township zoning board of appeals’ decision under a statute which provides in part that "[t]he decision of such board shall not be final, and any person having an interest affected by any such ordinance shall have the right to appeal to the circuit court on questions of law and fact” is not limited to questions of law; since the board’s decision is not finál, and since the circuit court reviews both the facts and the law, the circuit judge should have treated the matter as a trial de novo and entered whatever order he' determined to be proper upon the merits of the controversy (MCLA 125.293).
Reference for Points in Headnotes
[1-3] 58 Am Jur, Zoning § 194 et seq.
*708Appeal from Court of Appeals, Division 2, Lesinski, C. J., and Bronson and Targonski, JJ., affirming Washtenaw, Harold Van Domelen, J.
Submitted November 6, 1973.
(No. 4
November Term 1973,
Docket No. 54,561.)
Decided December 18, 1973.
43 Mich App 308 reversed.
Complaint by John J. Quigley and Louis Ruggirello against Dexter Township, the Dexter Township Zoning Board of Appeals, the Dexter Township Zoning Board, and the Dexter Township Zoning Inspector for superintending control to reverse a decision of the zoning board of appeals and order the issuance of a conditional use permit, a declaratory judgment and an injunction. Counterclaim by defendants for an injunction to restrain plaintiffs from using their premises as a hunt club. Section of zoning ordinance declared unconstitutional, decisions of zoning board and zoning board of appeals reversed, case remanded to the zoning board for reconsideration and counterclaim dismissed with prejudice. Plaintiffs appealed to the Court of Appeals. Affirmed. Plaintiffs appeal.
Reversed and remanded to circuit court.
Nussbaum. McEvoy & Moscow, P. G, for plaintiff Quigley.
Ginn, Kramer & Jacobson, P. C, for plaintiff Ruggirello.
Keusch & Flintoft, for defendants.
T. E. Brennan, J.
A zoning board of appeals established in a city under MCLA 125.585; MSA ? 5.2935 renders final decisions. These are generally *709reviewable by superintending control in circuit court. In such case, the scope of review is essentially that formerly had by certiorari. Lorland Civic Association v DiMatteo, 10 Mich App 129; 157 NW2d 1 (1968).
This is not the case, however, in townships, where zoning boards of appeals are established under MCLA 125.288 et seq.; MSA 5.2963(18) et seq. As to township zoning boards of appeals, the statute expressly provides that decisions of the board are not final and are to be reviewed both as to facts and law in circuit court. MCLA 125.293; MSA 5.2963(23).
The circuit judge misconceived his function when he opined:
"However, courts should not impose their judgments in matters of discretion which are properly vested in Zoning Boards. Barkey v Nick, 11 Mich. App. 381 [161 NW2d 445 (1968)].”
Barkey v Nick involved the zoning board of appeals of the City of Royal Oak. Judge McGregor, writing in Barkey, cited Indian Village Manor v Detroit, 5 Mich App 679; 147 NW2d 731 (1967), *710another case involving a city zoning board of appeals.
The rule in townships is different. The Legislature apparently is well aware that in less populous communities, there is greater likelihood of. partiality and interest on the part of local officials. It is significant that the circuit judge found two members of the Dexter Township Zoning Board of Appeals to be so affected in the case before us.
Review in circuit court of a township zoning board of appeals’ decision under MCLA 125.293; MSA 5.2963(23) is not limited to questions of law. Since the board’s decision is not final, and since the circuit court reviews both the facts and the law, the circuit judge should have treated the matter as a trial de novo and entered whatever order he determined to be proper upon the merits of the controversy.
This cause is remanded to circuit court, with costs to the plaintiff.
T. M. Kavanagh, C. J., and T. G. Kavanagh, Swainson, Williams, Levin, and M. S. Coleman, JJ., concurred with T. E. Brennan, J.