City of Grosse Pointe Park v. Detroit Historic District Commission

Mich. Court of Appeals, No. 298802, April 19, 2012 (unpublished): A state historic preservation review board to deny demolition approval was reasonable where the board found expert testimony supporting demolition to be unconvincing.

The City of Grosse Pointe Park (GPP) sought to demolish two buildings built in 1918-20 that it owns in Detroit. The demolition required City of Detroit approval, for which permission (notice to proceed) from the Detroit Historic District Commission (the DHD commission) was required because an historic district had been established (after the demolition permit was first applied for) that included these buildings. The DHD commission denied permission. GPP appealed to the Libraries’ State Historic Preservation Review Board (the review board) and presented expert testimony as to the deterioration of the buildings and the need for demolition. The Court of appeals opinion mentions no contrary testimony or evidence presented to the review board. The review board upheld the DHD commission’s decision not to issue a notice to proceed. GPP appealed to a state circuit court, which upheld the review board and the denial of the notice to proceed. GPP appealed that decision.

The Court of Appeals said that it would determine only whether the circuit court made a mistake interpreting the law about the standard of the circuit court’s review of the review board’s administrative decision. The primary issue before the Court of Appeals was an interpretation of the “substantial evidence” test. The Court quoted its prior opinion in Dignan v Michigan Pub School Employees Retirement Bd, 253 Mich App 571, at 576, “A circuit court’s review of an administrative agency’s decision is limited to determining whether the decision was contrary to law, was supported by competent, material, and substantial evidence on the whole record, was arbitrary or capricious, was clearly an abuse of discretion, or was otherwise affected by a substantial and material error of law.”

The Court said that “in contested administrative proceedings, the proponent of an order or petition generally has the burden of proof and the burden of going forward. GPP was the proponent of the issuance of a notice to proceed and thus had the burden of proof and the burden of going forward. GPP relied on the opinions of [two expert] to support its contention that a notice to proceed should be issued.  The review board found that the opinions of [the experts] were not convincing.”

The Court concluded that the review board’s decision — that GPP’s evidence was inadequate to support a requirement for issuing a notice to proceed — was a reasonable decision and the circuit court did not have a basis to overturn the review board’s findings. The circuit court’s decision to affirm the review board’s findings therefore was not “a misapprehension or gross misapplication of the substantial-evidence test.”

Decision available at http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20120419_C298802_50_298802.OPN.PDF.

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