LuAnne Kozma v Scott Law 


A win at the Michigan Court of Appeals

Update, March 14, 2024:

On June 13 2022, Hayes Township resident LuAnne Kozma sued in Charlevoix County Circuit Court to prevent Scott and Debra Law from beginning any work on their proposed “boathouse”/dining/event facility, basin and channel project, including excavation. The suit sought an injunction under the Michigan Zoning Enabling Act, which provides that an appeal to the Zoning Board of Appeals “stays all proceedings in furtherance of the action appealed” (MCL 125.3604(3)) and the Hayes Township Zoning Ordinance which also stays all actions while there is a ZBA appeal pending. Kozma’s appeal to the ZBA was filed on December 20, 2021, after Supervisor Ron Van Zee filed a sworn affidavit that Township approval was not necessary for a boat basin or channel, and he would again issue a zoning permit for the boathouse/event facility building because it met the Zoning Ordinance. This was a “determination” that could be appealed, Kozma claimed. The Charlevoix County Circuit Court erroneously ruled in favor of the Laws, and awarded sanctions against Kozma, who was to pay the Laws over $6,000 in court costs and attorney fees, saying the case was frivolous.

The Michigan Court of Appeals ruled for Kozma and reversed the Charlevoix County Circuit Court, on March 14, 2024

In its ruling, the Court of Appeals stated: 

The two central questions are 1) whether an appeal of a determination made by a zoning authority that no permit is necessary for a project triggers the automatic-stay provision and 2) whether the automatic-stay provision prohibits work on a project until the zoning board of appeals has decided the appeal. Without deciding the proper interpretation of the statute, it can be concluded that plaintiff’s claim had arguable legal merit because it was sufficiently grounded in law and fact. The Michigan Zoning Enabling Act supports plaintiff’s argument that an appeal of a determination that no permit is necessary for a project triggers the automatic-stay provision.”

. . . 

If the automatic-stay provision did not apply to construction, the Legislature would have essentially created a right without a remedy. If a zoning administrator erroneously concluded that no permit was needed for a project, there would be no mechanism for stopping construction until after the zoning board of appeals decided the appeal.”

. . . 

 “The trial court abused its discretion when it awarded costs and attorney fees because it committed legal and factual errors.”

The 3-judge panel at Court of Appeals also implicitly validated that Kozma’s Appeal case to the ZBA, challenging Ron Van Zee’s determinations in his affidavit, was legitimate, and should never have been dismissed by the Hayes Township Zoning Board of Appeals.

To our knowledge, the Laws have not reapplied to the Township for new permits since earlier township approvals issued for boat basin in 2019 and boathouse in 2020 expired, and cannot now do so after the Hayes Township Zoning Board of Appeals decided in August 2022 that excavation of the shoreland for boat basins and canals is prohibited by the Zoning Ordinance.

The Court of Appeals ruling

Laws' answer and motion for summary disposition and sanctions

Kozma's response and request for summary judgment