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STATE OF MICHIGAN
COURT OF APPEALS


POLKTON CHARTER TOWNSHIP, PlaintiffCounterdefendant/Appellant, v RICK PELLEGROM, DefendantCounterplaintiff/Appellee.

FOR PUBLICATION February 3, 2005 9:00 a.m.

No. 248935 Ottawa Circuit Court LC No. 02-043573-CZ Official Reported Version

Before: Whitbeck, C.J., Jansen and Bandstra, JJ. JANSEN, J. Plaintiff/counterdefendant Polkton Charter Township appeals by leave granted a circuit court opinion and order reversing a Polkton Charter Township Zoning Board of Appeals (hereinafter ZBA) decision and requiring that the ZBA issue defendant/counterplaintiff Rick Pellegrom a special permit to create an outdoor pond. On appeal, plaintiff argues that the circuit court ignored the plain language of the zoning ordinance, relied on case law that has been statutorily overruled, did not have subject-matter jurisdiction, and improperly shifted the burden of proof to the ZBA. We affirm. I Defendant owns approximately 31.18 acres of land in Polkton Township. About April 29, 2002, defendant filed an application for a special land use permit with the ZBA for the purposes of extracting soil from the property to build a pond and developing walkout waterfront lots. In a land division application, defendant proposed a division for new residential parcels. On June 18, 2002, plaintiff filed a complaint with the circuit court alleging that: (1) defendant was establishing a planned unit development without receiving permits; (2) defendant continued to work after a stop-work order was issued and posted; and (3) defendant removed soil and created a pond without a permit. On July 9, 2002, the ZBA denied defendant's application for a special use permit to build the pond and to extract the soil. On August 7, 2002, defendant filed a counterclaim alleging that plaintiff violated the Michigan Land Division Act, MCL 560.101 et seq., because it failed to give written notice of the reasons why three parcels were not approved for division, and defendant claimed an appeal from the ZBA decision because the ZBA denied defendant's application for a special land use permit without explanation. The parties stipulated -1-


that the case, as it relates to the ZBA decision, would be remanded for a hearing to create a record and so the ZBA could give its reasons for denying defendant's request. The circuit court entered an order reflecting the parties' stipulation. The hearing on remand was conducted before the ZBA to make a record with regard to whether defendant should be granted a permit to create an outdoor pond on his property pursuant to Polkton Charter Township Zoning Ordinance

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Michigan Law