Appeal from Wayne, Horace W. Gilmore, J.
V. J. Brennan, P. J., and R. M. Maher and Britten,* JJ.
1. Zoning -- Board of Appeals -- Unrelated Conditions.
A board of zoning appeals may not impose conditions unrelated to the use of the land.
2. Zoning -- Board of Appeals -- Special Exception -- Ordinances -- Time Limitations.
A special exception does not vary a zoning ordinance but permits certain uses authorized under stated conditions in the ordinance; therefore, where a board of zoning appeals has determined that a use qualified under the ordinance as a special exception and conditions related to the use of the land are imposed, that use cannot be subject to a time limitation.
The opinion of the court was delivered by: Per Curiam
Complaint by Room and Board Homes and Family Care Homes, operators and owners; Major Foster, Ophelia Simmons, and others against Roman S. Gribbs, Mayor of the City of Detroit, the Board of Zoning Appeals, and others, challenging the constitutionality of certain amendments to the Detroit Zoning Ordinance. Judgment for defendants. From an order denying the Board of Zoning Appeals the authority to impose a time limitation upon the granting of an exception or variance, defendants appeal.
Plaintiffs brought a class action, challenging the constitutionality of certain amendments to the Detroit Zoning Ordinance. The trial court entered a judgment upholding ordinance 390-G, as amended by ordinance 528-G and 858-G. It was further ordered that "the Board of Zoning Appeals shall not attach any conditions to its orders or decisions that would limit the time that an adult foster care facility may be operated. All decisions or orders made by the Board of Zoning Appeals involving adult foster care facilities shall be permanent." It is that portion of the judgment forbidding the zoning appeal board from imposing time limitations that is before us on appeal.
Plaintiffs are owners and operators of adult foster care facilities in the City of Detroit. Section 32.0007 of the city zoning ordinance defines such facilities as follows:
"An Adult Foster Care Facility is any establishment which provides supervision, assistance, protection or personal care, in addition to room and board, to Adults. An Adult Foster Care Facility is other than a home for the aged or a nursing home or a mental hospital for mental patients."
Section 62.0402 provides for "special exceptions":
"The Board shall hear and decide only such special exceptions and modifications as they are specifically authorized to pass on under the terms of this Ordinance. They shall decide such questions as are involved in determining whether special exceptions or modifications should be granted and shall impose such condition and safeguards as it deems necessary to carry out the intent, spirit and purpose of this Ordinance. They shall deny those requests which are not in harmony with the intent and purpose of this Ordinance.
"j) The Board may permit, after public hearing, the establishment of, or conversion of existing buildings to Adult Foster Care Facilities in the R3, R4, R5, R6, ...