25-009285-CB FILED INMY OFFICE Cathy M. Garrett WAYNE COUNTY CLERK 6/13/2025 3:55 PM _ Carla Keefe STATE OF MICHIGAN VERIFICATION OF paeeeece | 3rd JUDICIAL CIRCUIT BUSINESS COURT ELIGIBILITY j COUNTY OF WAYNE 'AND NOTICE OF ASSIGNMENT | Court address: 2 Woodward Ave., Dato, MIa8226 : Pa Daley THE GIVING TREE MONTESSORI | VDG DETROIT, LLC, a Michigan Limited |LEARNING CENTER, INC.,a Michigan |_| Liability Company and CHICK-FIL-A, INC., Corporation ; ‘a Georgia Corporation. j Lam the attorney for the feneck one] 1 ptaintit C] defendant and per MCR 2.114(B)(2) and MCR 2.114{D) dectare to hutory re be assigned te the business cour, MCR 2-112(0)MCL 600.6031 et seq.. and request assignment fo the Business Court for the [Both Sections 1 and 2 must be completed to be accepted by the Court (check all that apply)] 4. Parties. This s a qualifying business or commercial dispute as defined by MCL 600.8031(1)(c) because, &, al ore pats ae business enterprises T one or more of the parties is a business enterprise and the other parties are its or their present or former owners, managers, shareholders, members, directors, officers, agents, employees, suppliers, or competitors, and the claims ariso out of those relationships C one of the parties is a non-profit organization, and the claims arise out of that party's organizational structure, governance, or finances, Ci itis an action involving the sale, merger, purchase, combination, dissolution, liquidation, organizational structure, governance. or finances of a business enterprise. ‘AND 2. Actions. This business or commercial action as defined by MCL 600.8031(2) involves, D. information technology, software, or website development, maintenance, or hosting C1 the internal organization of business entities and the rights or obligations of shareholders, partners, members, owners, officers, directors, or managers 1 contractual agreements or other business dealings, including licensing, trade secret, intellectual property, antivust, secures, noncompete, nonsoitaion, and confdentaty agreements if all avaible administrative remedies are completely exhausted, Incuding but not lited to. atemative dispute resolution processes prosctbed Inthe agreements commercial ransaction, including commercial bank transactions 1 business or commercial insurance polices E41 commercial real property O other type of business or commercial dispute (exp) 6/13/25, Date tgnature ‘Thomas Stidham (P56504) Name (ype orprnt) SSCsSTATE OF MICHIGAN IN CIRCUIT COURT FOR THE COUNTY OF WAYNE THE GIVING TREE MONTESSORI Case No. 25- -CB LEARNING CENTER, INC., a Hon, Michigan Corporation, Plaintiff, aS VDG DETROIT, LLC, a Michigan Limited Liability Company, And CHICK-FIL-A, INC., a Georgia Corporation, Defendants, Thomas Stidham (P56504) 1401 W. Fort St., Ste, 44-1815 Detroit, MI 48244 (248) 303-0306 Attomey for Plaintiff PLAINTIFF'S COMPLAINT FOR DECLARATORY ‘There is no other pending or resolved civil action arising out of the transaction or occurrence alleged in the complaint, NOW COMES Plaintiff THE GIVING TREE MONTESSORI LEARNING CENTER, INC., by and through undersigned counsel, and for its Complaint For Declaratory And Other Relief, hereby states as follows: 1. PAR’ AND JURISDIC 1 Plaintiff THE GIVING TREE MONTESSORI LEARNING CENTER, INC. (herein “Plaintiff” or “THE GIVING TREE") is a Michigan corporation which operates a nonpublic school commonly known as THE GIVING TREE MONTESSORI LEARNING CENTER in the City of Detroit, Wayne County, Michigan,2. Defendant VDG DETROIT, LLC (herein “VDG") is a Michigan Limited Liability Corporation which conducts business in the City of Detroit, Wayne County, Michigan. 3. Defendant CHICK-FIL-A, INC. (herein “CFA”) is a Georgia Corporation having a principal place of business at 5200 Buffington Road, Atlanta, Georgia but conducts business in Wayne County, Michigan. According to CFA, the apportionment percentage from its most recently filed Michigan tax return (from 2023) is 0.7904%, 4, The events giving rise to this action occurred in the City of Detroit, Wayne County, Michigan and venue is proper in Wayne County. 5. As Plaintiff seeks equitable and declaratory relief as to certain claims, this action is within the jurisdiction of the Court and as to other claims where damages are requested, the amount exceeds the sum of Twenty Five Thousand ($25,000.00) Dollars, exclusive of costs, fees and interest. 6. Plaintiff verifies that the case meets the statutory requirements to be assigned to the business court, including MCL 600.803 1(2)(g) involving commercial real property. II, BACKGROUND 7. Plaintiff repeats and restates the allegations in Paragraphs 1 through 6 as if fully set forth herein, A. The Real Property. 8. Plaintiff THE GIVING TRE! is a nonpublic school located at 4351 Marseilles in the City of Detroit, furnishing both educational services for children as well as childcare services for pre-kindergarten aged children. Plaintiff became an approved nonpublic school on July 16,2024. Prior to its approval as a school by the Michigan Department of Education, Plaintiff THE GIVING TREE operated as a childcare facility. 9, Atall times relevant hereto, Defendant VDG was the fee owner of the real property located at 17761 Mack Avenue in the City of Detroit, which is more particularly described as: Part of Lot 40 of Plat of Addition to the Rivard Park Subdivision of Private Nos. 299 and 458, in the Townships of Grosse Pointe and Gratiot, County of Wayne, State of Michigan, according to the plat thereof as recorded in Liber 20 on Page 57 of Plats, Wayne County Records, and being more particularly described as beginning at a concrete monument at the intersection of the Westerly line of Mack Avenue as widened with the Southwesterly line of Marseilles Avenue, 75 feet wide, and running thence South 16 degrees 24 minutes 00 seconds West (along Westerly line of Mack Avenue as widened) 181.10 feet; thence North 28 degrees 58 minutes 10 seconds West (along the lot line common to Lots 40 and 41) 295.00 feet; thence North 16 degrees 24 minutes 00 seconds East 182.23 feet; thence South 28 degrees 48 minutes 00 seconds East (along the Southwesterly line of Marseilles Avenue, 75 feet wide) 295.88 feet to the place of beginning; said premises being situated at the Northwest corner of Marseilles and Mack Avenues. (herein the “17761 Property”) 10. From 1965 until March 11, 2024, the legal land use of the 17761 Property was as a “Repair Garage & Vehicle Sales Facility” serving as a sales building for the former Ray Laethem Buick Truck Sales via building permits issued June 29, 1965 (Permit No. 71149) and June 25, 1973 (Permit No. 90155). The 2024 Denial By Detroit Buildings, Safety Engineering And Environmental Department Of The 17761 Mack Ave. Property As A Proposed Chick-Fil-A Fast Food Restaurant, 11. On January 5, 2024, the City of Detroit Buildings, Safety Engineering And Environmental Department (“BSEED”) issued its Decision Denying Chick-Fil-A’s special land use request to “[dJemolish an existing building and construct a new 2,950 square foot Restaurant,fast-food, with drive-up or drive-through facilities” located at the real property located at 17761 Mack Avenue in Detroit, Michigan and more particularly described as: 17661 Mack Ave. between Marseilles Street and University Plin a 84 (General Business) Zoning District and legally described as: N MACK ALL THAT PT OF 40 DESC AS BEG AT INTSEC OF WLY LINE MACK AVE 120 FT WD WITH SWLY LINE MARSEILLES AVE 75 FT WD TH S 16D 24M W 181.10 FT ALG WLY LINE MACK AVE TH N 28D 58M 105 W 295 FT TH N 16D 24M E 182.23 FT TH S 28D 48M E 295.86 FT ALG SWLY LINE MARSEILLES AVE TO POBRIVARD PARK SUB L20 P57 PLATS, W C R.21/836 181.10 IRREG (PIN 21001579,002L) See BSEED January 5, 2023 letter attached hereto as Exhibit A and CFA’s Preliminary Site Plan dated 7/13/23 attached hereto as Exhibit B. 12. BSEED’s Denial was effective January 19, 2024 and at some time thereafter, CFA, by and through its representative, PEA Group, appealed the denial to the Detroit Board of Zoning Appeals ‘The March 11, 2024 Reversal Of BSEED’s Decision By The City Of Detroit Board Of Zoning Appeals. 13. On March 11, 2024, the Detroit Board of Zoning Appeals (herein the “BZA”) conducted an appeal hearing of the BSEED decision (BSEED S .U2023-00146) denying the demolition of the building and to construct a new 2,950 sq. ft. restaurant, fast-food with drive- through facilities. The BZA notice provides a partially erroneous description of the location of the property at “17761 Mack Avenue, between Parker and Van Dyke in a B4 (General Business District)” despite it not being between Parker and Van Dyke, and further contains the legal description as follows: N MACK ALL THAT PT OF 40 DESC AS BEG AT INTSEC OFWLY LINE MACK AVE 120 FT WD WITH SWLY LINE MARSEILLES AVE 75 FT WD TH $ 16D 24M W181.10 FT ALG WLY LINE MACK AVE TH N 28D 58M 10S W 295 FT THN 16D 24M E 182.23 FTTH S 28D 48M E 295.86 FT ALG SWLY LINE MARSEILLES AVE TO POBRIVARD PARK SUB L20 P57 PLATS, WC R 21/836 181.10 IRREG 14. Plaintiff THE GIVING TREE, by and through its representative, appeared in- person at the Match 11, 2024 heating, voiced its position and objections to the petitioner's request and also submitted a 10-page memorandum detailing why a restaurant use did not, and could not, meet the General Application Criteria required by Detroit City Code Section 50- 281, Items 1-15, 15. At the conclusion of the March 11, 2024 hearing, the BZA, by a majority vote of 4-1, ignoring Plaintiff's objections and facts establishing that petitioner CFA did not meet the criteria required by Code Section 50-3-281, voted to (a) reverse and overturn with conditions the BSEED Denial and (b) to “impose a condition that the petitioner amend its existing plan to locate the facility’s primary entrance and exit on Mack Avenue for the protection of the public interest, health, safety, welfare, and environment.” See BZA Meeting decision minutes at page 4 dated March 11, 2024, attached hereto as Exhibit C. B, The Two April 16, 2024 BZA Decision And Orders. 16. On April 16, 2024, the BZA issued its 12-page Decision And Order in BZA Case No. 14-24 for the location at 17761 Mack Ave., between Marseilles and University Pl in a B4 zone and contains the legal description as’ N MACK ALL THAT PT OF 40 DESC AS BEG AT INTSEC OF WLY LINE MACK AVE 120 FT WD WITH SWLY LINE MARSEILLES AVE 75 FT WD TH S 16D 24M W181.10FT ALG WLY LINE MACK AVE TH N 28D 58M 10S W295 FT THN 16D 24M E 182.23 FTTH S 28D 48M E 295.86FTALG SWLY LINE MARSEILLES AVE TO POBRIVARD PARK SUB 20 P57 PLATS, W CR 21/836 181.10 IRREG 17. The Decision And Order further reflects that the petition is an appeal of BSEED’s Decision which Denied demolishing an existing building and to construct a new 2,950 square foot restaurant, fast-food. See Page I of the Decision And Order, attached hereto as Exhibit D. At Page 7 of the Decision And Order provides that “[tJherefore: [t]he Peitioner’s [ Jappeal is hereby GRANTED, thereby Reversing the BSEED Decision.” 18. Yet requirement (g) on Page 7 of the Decision And Order reflects that “[tJhis Grant is only to establish an accessory 13 space parking lot on vacant land in a R2 zone” and specifically provides in bold at (z) “[t]his grant is only for the establishment of a parking lot only. Only operable vehicles are allowed on this property. Storage is not allowed in the parking lot.” (emphasis added). 19. The above April 16, 2024 BZA Decision And Order was recorded in the Wayne County Register Of Deeds on January 22, 2025 at Liber $9300, Page 949. Exhibit D. 20. Also on April 16, 2024, the BZA issued its 9-page Decision And Order in BZA Case No, 14-24, attached hereto as Exhi E, for the location at 17761 Mack Ave., between Marseilles and University Pl in a B4 zone, containing the legal description of: 'N MACK ALL THAT PT OF 40 DESC AS BEG AT INTSEC OF WLY LINE MACK AVE 120 FT WD WITH SWLY LINE MARSEILLES AVE 75 FT WD TH S 16D 24M W181.10FT ALG WLY LINE MACK AVE TH N 28D 58M 10S W295 FT TH N 16D 24M E 182.23 FT TH S 28D 48M E 295.86FT ALG SWLY LINE MARSEILLES AVE TO POBRIVARD PARK SUB 20 P57 PLATS, W C R 21/836 181.10 IRREG21. The Decision And Order further reflects that the petition is an appeal of BSEED"s Decision which Denied demolishing an existing building and to construct a new 2,950 square foot restaurant, fast-food. See Page | of the Decision And Order. Exhibit E. Page 7 of the Decision And Order provides that “{tJherefore: [t]he Peitioner’s [ ] appeal is hereby GRANTED, thereby Reversing the BSEED Decision contingent on condition K.” Condition (k) on Page 6 provides in bold that “t]he entrance and exits must only be on Mack Ave. No vehicular access on Marseilles is permitted.” (emphasis in original). 1d. 22. Paragraph (g) on Page 7 provides in relevant part that “[tJhis Grant is only to demolish an existing building and construct a new 2,950 square foot Restaurant, fast-food, with drive-up or drive-through facilities in a B4 General Business District.” Jd 23. Condition (w) provides that “[t]he applicant is prohibited from expanding the scope and area of the site or increasing the type of activities beyond the scope and nature of the operation without prior approval of the Board of Zoning Appeals.” (emphasis added). Likewise, condition (g) provides in relevant part that “under this Grant this use cannot be expanded, enlarged, or altered in any manner, nor can any conditions be modified in any manner. unless written permission is given by the Board of Zoning Appeals.” (emphasis in the original). /a. 24. The above BZA Decision And Order also dated April 16, 2024 was recorded in the Wayne County Register Of Deeds on February 5, 2025 at Liber $9328, Pg. 1252. Ex! ‘The May 12, 2025 Notice Of Hearing For A Variance. 25. Pursuant to a Notice of its Regular Meeting, the BZA noticed a hearing “to modify BZA Decision 14-24 Condition “K” that no ingress or egress to or from Marseilles ispermitted” noting that “a minor modification toa grant condition for BZA 14-24 condition K” The BZA May 12, 2025 hearing notice contained the very same legal description as used in all prior notices before either BSEED or the BZA. See Notice attached hereto as Exhibit F. 26. At the May 12, 2025 meeting, a representative of Plaintiff appeared but was informed that there was no hearing as noticed and that the Meeting Notice identifying the hearing was an “error” C. ‘The Boundary Dispute Action, 27. In 2023, VDG filed an action in Wayne County Circuit Court (Case No. 23 013822-CH assigned to the Hon, Brian R, Sullivan) against APOSTOLIC RENOVATION MINISTRIES INTERNATIONAL II (herein “ARMI" or “Apostolic”) and AMERICA’S CHRISTIAN CREDIT UNION conceming the disputed boundary arising out of a fence that was not erected along the platted property line between the contiguous properties located at 17761 Mack, Detroit, MI (owned by VDG) and 4351 and 4281 Marseilles Street, Detroit, MI (owned by ARMI, of which a portion of the property is utilized by Plaintiff THE GIVING TREE). 28. Asa result of the location of the fence, VDG exch ively occupied and used for its benefit a portion of the Apostolic Property (the “VDG Disputed Parcel”) depicted in the survey as the dotted 1g Title To Real ngular parcel attached as Exhibit A to a Consent Order Qui Property dated April 26, 2024, attached hereto as Exhibit G, and described as; ‘ALL THAT PART OF LOT 40 DESCRIBED AS BEGINNING AT A POINT DISTANT NORTH 28 DEGREES 48 MINUTES 00 SECONDS WEST 227.08 FEET AND SOUTH 58 DEGREES 08 MINUTES 46 SECONDS 00 SECONDS WEST 73.30 FEET FROM ‘THE INTERESECTION OF THE WESTERLY LINE OF MACK AVENUE 120 FEET WIDE; ‘THENCE SOUTH 16 DEGREES 24 MINUTES 00 SECONDS WEST 79.17 FEt THENCE NORTH 28 DEGREES 58 MINUTES 10 SECONDS WEST 52.93 FEET; ‘THENCE NORTH 58 DEGREES 17 MINUTES 59 SECONDS EAST 56.41 FEET TO ‘THE POINT OF BEGINNING, RIVARD PARK SUBDIVISION LIBER 20 PAGE 57 8PLATS, WAYNE COUNTY RECORDS. 17. 29, Pursuant to a Consent Order Quieting Title To Real Property dated April 26 2024—more than one month after the March 11, 2024 BZA Hearing for 17761 Mack—VDG and Apostolic resolved their boundary dispute action and stipulated to, among other things, “that the fee interest of Apostolic in the VDG Disputed Parcel is hereby forever extinguished and fee simple title to this parcel is vested absolutely in VDG.” 30, Likewise, the Consent Order Quieting Title To Real Property further provided that the fee interest of VDG in the Apostolic Disputed Parcel is hereby forever extinguished and fee simple title to this parcel is vested absolutely in Apostolic.” Jd. at p.4. 31. No notice to landowners or occupants within 300 feet of the VDG Disputed Parcel or other members of the public was provided that the VDG Disputed Parcel was to be made a part of any land use change, restaurant development or construction and it is undisputed that it was never brought before the BZA. ‘The Impact Of The Boundary Dispute Resolution On The 17761 Mack Ave. Property 32. At the time of the BZA Hearing, the site plan submitted by CFA and considered and decided upon the BZA did not contain the VDG Disputed Parcel nor could it since on March 11, 2024, it was owned by Apostolic Renovation Ministries International, II 33. Likewise, at the time of the BZA Hearing, it is undisputed that the BZA did not consider the VDG Disputed Parcel as part of the property that was to be developed 34. Thus, the VDG Disputed Parcel was not identified as part of the plan on the initial alternative site plan to BSEED.35. At the time of the BZA’s reversal of the BSEED Decision on March 11, 2024, the VDG Disputed Parcel was owned by Apostolic and VDG did not have any ownership interest in the VDG Disputed Parcel, the VDG Disputed Parcel was not identified on the alternative site plan and more importantly, the reversal of the BSEED decision was based upon the legal description consistently used throughout that zoning process by VDG and/or CFA that did not contain the VDG Disputed Parcel and therefore, it was never considered by the BZA. 36. Significantly, it is undisputed that from April 26, 2024 to the present, neither VDG nor CFA requested approval of the VDG Disputed Parcel from the BZA at any time and the BZA was never requested to determine the use of the VDG Disputed Parcel as a fast-food restaurant. 37. Subsequently, on April 4, 2025, BSEED conducted a plan review of a Site Plan for 17761 Mack Avenue and approved the site plan containing the VDG Disputed Parcel as part of the CFA circulation route footprint, despite the fact that the VDG Disputed Parcel was not approved by the BZA (nor could it have been as VDG obtained title to this portion of land more than one month affer the March 11, 2024 decision and after its April 16, 2024 Decision And Order). 38. Equally important, Condition (w) of the BZA’s April 16, 2024 Decision And Order provides that “[t]he applicant is prohibited from expanding the scope and area of the site or increasing the type of activities beyond the scope and nature of the operation without prior approval of the Board of Zoning Appeals.” (emphasis added). 39. Ignoring the BZA’s Decision And Order Condition (w) that requires prior approval of the Board of Zoning Appeals, by including the VDG Disputed Parcel within its Site 10Plan, the VDG Disputed Parcel was never approved by the BZA and Defendants VDG and/or CFA are demolishing and/or attempting to construct a restaurant facility upon a portion of land for which approval was never sought or provided by the BZA. The Impact Of Detroit Ordinances Upon The Intersection Of The VDG Disputed Parcel, 17761 Mack Ave. And The Giving Tree School. 40. On July 16, 2024, Plaintiff THE GIVING TREE was approved as a nonpublic school by the Michigan Department Of Education and is prominently displayed and readily discoverable as a school on the State of Michigan’s Center For Educational Performance And Information website as well as within the City of Detroit’s own webpages under the District 4 Councilmember’s directory of schools located within Council District 4 41. Section 50-12-310 of the Detroit City Code governs carry-out and fast-food restaurant uses and provides that they must be located on a street designated as a major or secondary thoroughfare and are subject to the spacing provisions of Sections 50-12-131 and SO- 12-132 42. Section 50-12-131 of the Code prohibits a Restaurant, carry-out or fast-food, from. being within less than a minimum distance of a school of $00 radial feet. 43, The VDG Disputed Parcel as depicted on the April 4, 2025 site plan is less than 100 radial feet from Plaintiff THE GIVING TREE. 44, mmilarly, VDG’s 17761 Mack Ave. property is located between 1-10 feet in most places from the Plaintiff THE GIVING TREE. D. The April 4, 2025 Approval By BSEED Of A Site Plan Containing The VDG Disputed Parcel. 145. On April 4, 2025, BSEED approved CFA’s amended site plan, attached hereto as Exhibit H, which contains and uses the VDG Disputed Parcel, despite not receiving prior approval from the BZA. COUNT I DECLARATORY RELIEF ARISING OUT OF UNLAWFUL SITE DEVELOPMENT PROCESS AND UNAPPROVED LAND USE CHANGE RESULTING IN A LACK OF LOCATIONAL SUITABILITY TO A SCHOOL 46. Plaintiff THE GIVING TREE repeats and incorporates by reference the allegations contained within Paragraphs 1 through 45 as if fully set forth herein. 47. In Lansing School Ed Ass'n v Lansing Bd of Ed, 487 Mich 349, 372; 792 NW2d 686 (2010), the Supreme Court stated that “whenever a litigant meets the requirements of MCR 2.605, it is sufficient to establish standing to seek a declaratory judgment.” Id. 48, MCR 2.605(A)(1) provides that “[iJn a case of actual controversy within its jurisdiction, a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory judgment.” (emphasis added), 49. To show an “actual controversy,” the plaintiffs need only “plead and prove facts which indicate an adverse interest necessitating the sharpening of the issues raised.” Lansing Sch Ed Ass'n, 487 Mich at 372 n 20, quoting Associated Builders & Contractors v Director of Consumer & Industry Services, 472 Mich 117, 126; 693 NW2d 374 (2005). 50. Here, three separate items require the Court to declare the rights of the parties to guide their future conduct. First, Defendants VDG and/or CFA are in the process of demolishing an existing building and constructing a restaurant on both the 17761 Mack Ave. and the VDG 2Disputed Parcel. Irrespective of whether any lot split and combination occurred in 2025, itis undisputed that in 2024 to present, the Board of Zoning Appeals did not pass muster upon or was even requested to decide a land use change for the VDG Disputed Parcel. Plaintiff submits that the portion of land encompassed by or within the VDG Disputed Parcel cannot be developed or built upon until the VDG Disputed Parcel through VDG requests and receives approval of a land use change from the Board of Zoning Appeals, Moreover, the conditions of the BZA’s Decision And Order expressly prohibit the expansion of both the scope and area of the site without prior approval of the Board of Zoning Appeals. Therefore, Defendants VDG and/or CFA are ignoring and circumventing these requirements and proceeding with both demolition and the beginning of construction of a restaurant without compliance of the ordinance. 51. Next, as established above, the VDG Disputed Parcel is located within 100 radial feet of the Plaintiff THE GIVING TREE. Plaintiff submits this violates and is in direct contravention of Dettoit City Code Section 50- 2-131 prohibiting a Restaurant, carry-out or fast food, from being within less than a minimum distance of a school of 500 radial feet. The Plaintiff THE GIVING TREE operates as and is identified as a school as established above, even within the City of Detroit’s own webpages. Moreover, Condition (a) of the BZA’s Decision And Order dated April 16, 2024 requires the Defendant to “abide by and comply with all of the ordinances of the City of Detroit and the regulations of every lawful agency or public authority now ot hereafter in force...” and Condition (h) provides the application “MUST comply with all other Zoning Codes and Regulations and obtain the required permit.” 52. Third, Condition (0) of the Decision And Order provides that “this use is permitted as long as no nuisance is created by this operation and ALL CONDITIONS ARE. COMPLIED WITH.” As established below, to date, the proposed use as a restaurant with drive- 2Bthrough facilities without receiving approval of the Disputed VDG Parcel has created a nuisance (a.use of land in violation of a zoning ordinance is a nuisance per se; see MCL 125.3407) and as demonstrated above, Defendant VDG and/or its lessee CFA have failed to comply several Conditions, including but not limited to, expanding the scope without the prior permission of the ZBA, locating and purporting to include the VDG Disputed Parcel within its site plan despite no approval by the BZA and the location of the VDG Disputed Parcel less than S00 radial feet of a school, Plaintiff THE GIVING TREE. Therefore, based upon the foregoing, the issues of whether the construction, continued development and location of the VDG Disputed Parcel can be legally continued or otherwise use the VDG Disputed Parcel for the stated purpose without violating the law, and whether the so-called “approved” April 4, 2025 site plan remains valid and/or violative of the Conditions within the BZA’s Decision And Order remain issues upon which the Court ought to determine the parties’ rights in order for the protection of Plaintiff's rights. 53, Therefore, Plaintiff THE GIVING TREE and Defendants VDG and its lessee CFA sharply disagree over the issues identified above. 54, An actual controversy has arisen and a declaratory judgment is necessary to sharpen issues raised and to clarify the matters set forth above. Accordingly, Plaintiff THE GIVING TREE requests a declaratory judgment under MCR 2.605. WHEREFORE, Plaintiff THE GIVING TREE respectfully requests the trier of fact enter Judgment and a Declaratory Judgment in its favor on Court I and against Defendants VDG and CFA declaring that: (a) the portion of land encompassed by or within the VDG Disputed Parcel cannot be developed or built upon for use as a restaurant development until the Defendants” request and 14receive approval of a land use change from the Detroit Board of Zoning Appeals and that the conditions of the BZA’s Decision And Order expressly prohibit the expansion of both the scope and area of the site without prior approval of the Board of Zoning Appeals and therefore, Defendants VDG and CFA shall be required to pursue an application before the BZA for approval of a land use change for the VDG Disputed Parcel: (b) that Detroit City Code Section 50-12-131 prohibits a Restaurant, carry-out or fast- food, from being within less than a minimum distance of a school of 500 radial feet and therefore, Defendants VDG and CFA cannot locate, demolish, construct or use the VDG Disputed Parcel as a restaurant adjacent to Plaintiff THE GIVING TREE until it receives an approval of a change of land use and complies and fulfills with all locational suitability requirements, (©) determining that the construction, continued development and location of the VDG Disputed Parcel cannot be legally continued, that the VDG Disputed Parcel cannot be otherwise used other than a Repair Garage for the stated purpose without violating the law, and that the so- called “approved” April 4, 2025 site plan containing the VDG Disputed Parcel is invalid and expressly violates the Conditions within the BZA’s Decision And Order; and. (@) grant such other and further declaratory relief as the Court deems just and proper. COUNT II PRIVATE NUISANCE 55. Plaintiff THE GIVING TREE repeats and incorporates by reference the allegations contained within Paragraphs | through 54 as if fully set forth herein. 56, Defendant VDG, at all relevant times hereto, was the fee owner of 17761 Mack Ave. and entered into a Ground Lease dated February 7, 2023 with Defendant CFA for the use of the 17761 Mack Ave. property. 57. On March 11, 2024, Defendant CFA requested and was granted an appeal, permitting it to demolish and existing building and construct a 2, 950 sq. ft. restaurant, with drive-through facilities, 58. On April 26, 2024, Defendant VDG became the fee owner of the VDG Disputed Parcel 15,59. Itis undisputed that during the period March 12, 2024 to the date of filing of this action, the Board of Zoning Appeals did not grant a change of use of the VDG Disputed Parcel from Repair Garage & Vehicle Sales Facility to Restaurant, fast-food, with drive through operations, 60. Defendants VDG and CFA are undertaking to demolish an existing building and construct a new restaurant upon the VDG Disputed Parcel by utilizing this property as part of the overall development of a CFA restaurant, despite its location immediately adjacent to Plaintiff THE GIVING TREE and a residence at 4104 University Place in an R-I zoning district. Thus, Defendants have undertaken an ongoing nontrespassory invasion of Plaintiff's interest in the private use and enjoyment of its land 61, Defendants’ activities in demolishing and beginning sitework and construction of a restaurant are a nuisance as they are occurring on and about the VDG Disputed Parcel despite that it has not received any land use change approval by the BZA, constitutes an unapproved use in violation of the Detroit City Code and the violation of the ordinance constitutes a nuisance that must be abated. 62. The activities of Defendants VDG and CFA have directly and proximately caused Plaintiff THE GIVING TREE to suffer an unreasonable interference with the use of its property and further caused substantial damage, including difficulty in carrying on normal educational activities at the school, including the outdoor property used for educational opportunities less than 100 feet away from the VDG Disputed Parcel; diminution of the value of the property and leasehold; loss of enrollment and revenue; loss of enjoyment of the use of Plaintiff's property; disruption of Plaintiff's lives and general emotional distress and upset, including loss of sleep of 16its officer(s); damage to Plaintiff's property interest and possessions and other damages that flow naturally and consequently from the actions and conditions created by VDG and CFA. 63. Defendants have interfered with the Plaintiff THE GIVING TREE’S use or enjoyment of Plaintiff's property rights and privileges, 64, Defendants’ invasion of the property interests caused Plaintiff THE GIVING TREE significant harm and ongoing harm as the intensity and continued violations of the ordinance continue on a daily bas 65. The invasion was and remains continuing, intentional and unreasonable or was otherwise actionable under the rules governing liability for negligent, reckless or ultrahazardous conduct, 66. Additionally, by constructing and using the parking lot, circulation route, stacking lanes and vehicle wai ing lanes immediately adjacent and along the boundary line with Plaintiff's, property —literally within 6 feet of the Plaintiff's playground, which has acted as a playground since first established by St. Philomena Catholic Church and School in 1953—has resulted in and will continue to result in significant harm to the children attending Plaintiff's school, who are being exposed to demolition debris, dust, excessive noise in violation of the decibel levels required by the ordinance and with the opening of the restaurant, resulting in the exposure of the children to the motor vehicle idling and exhaust fumes, noise pollution in the forms of loud music and phone calls, order station call box, marijuana smell and other resulting impacts disrupting the educational opportunities of children by the two drive-through lanes and is clearly reckless or at best, negligent in the use of the property by Defendants. 767. Defendants" ctions in violating Condition (0) of the Decision And Order results in Defendants’ use of 17761 Mack Ave. and the VDG Disputed Parcel expressly not being permitted where a nuisance is created by their operation. 68. That the continuing violations of the Detroit City Code and the BZA’s Decision And Order dated April 16, 2024 identified herein constitute an interference with the use of Plaintiff's land and constitute private nuisances. 69. MCL 600.2940(1) provides that the Court may grant injunctions to stay and prevent a nuisance 70, As a direct and proximate result of the above-described continuing nuisance conditions, Plaintiff THE GIVING TREE has sustained, and continue to sustain, damages including but not limited to the following: (a) the loss of the normal use and enjoyment of their property; (b) the loss of enrollment and revenue as a result of the use by Defendants of a congested restaurant operations immediately adjacent to Plaintiff's school; (c) the diminution in the value of the use of their property and the leasehold; (d) annoyance, inconvenience, and discomfort, including mental stress and anguish of Plaintiff's officer(s); and (e) damages to Plaintiff's real and personal property and the expense of attempts to mitigate such damage. WHEREFORE, Plaintiff THE GIVING TREE respectfully requests the trier of fact enter Judgment in its favor and against Defendants VDG and CFA on Court IL as follows: A. Enter preliminary and permanent injunctive relief ordering Defendants VDG and CFA to each cease and desist in their activities resulting in conditions constituting violations of the Detroit City Code, the BZA’s Decision And Order and enter its Order that the site work, development and continued work and/or construction in, on or under the land and site area that is, 18.encompassed by or within the VDG Disputed Parcel and order that the VDG Disputed Parcel cannot be developed or built upon until the VDG Disputed Parcel through VDG requests and receives approval of a land use change from the Detroit Board of Zoning Appeals; B. _ Grant preliminary and permanent injunctive relief (i) ordering Defendants VDG and CFA to cease and desist in their activities resulting in conditions constituting violations of the BZA’s Decision And Order and the Detroit City Code; (ii) requiring the site work, development and continued work and/or construct nin, on or under the land and site area that is encompassed by or within the VDG Disputed Parcel cease, shall be immediately stopped, and the nuisance be abated; (iii) requiring that as a result of Detroit City Code Section 50-12-13 prohibiting a Restaurant, carry-out or fast-food, from being within less than a minimum distance of a school of 500 radial feet, order that Defendants VDG and CFA cannot locate, demolish, construct or use the VDG Disputed Parcel as a restaurant adjacent to Plaintiff THE GIVING TREE until such time as Defendants properly proceed through the land use approval process by the BZA as required; C. Grant preliminary and permanent injunctive relief ordering Defendants VDG and CFA to cease and desist in their activities resulting in a violation of the BZA’s Decision And Order and the Detroit City Code and determining that the construction, continued development and location of the VDG Disputed Parcel cannot be legally continued, that the VDG Disputed Parcel cannot be otherwise used other than a Repair Garage & Vehicle Sales Facility for the stated purpose without violating the law, and that the so-called “approved” April 4, 2025 site plan is invalid and expressly violates the Conditions within the BZA’s Decision And Order and applicable Detroit ordinances; D. Award Plaintiff all damages to which it is entitled; 19E. Enter such orders as the Court deems just and proper to abate each nuisance and ordinance violation in accordance with MCL 600.2940(5); F, Grant such further and other relief as the trier of fact deems just and proper. COUNT Il PUBLIC NUISANC! 71, Plaintiff’ THE GIVING TREE repeats and incorporates by reference the allegations contained within Paragraphs 1 through 70 as if fully set forth herein. 72. Additionally, Defendants VDG and CFA respective violations of the Detroit City Code as outlined above and are incorporated herein by this reference, and their demolition and construction activities in, on or under the VDG Disputed Parcel are an unreasonable interference with a common right enjoyed by the general public and consequently, taken together, constitute a public nuisance. 73, Defendants’ unreasonable interference with public rights involves conduct that significantly interferes with the public’s health, safety, peace, comfort, or convenience, is proscribed by law or is known or should have been known by Defendants to be of a con ing nature that produces a permanent or long-lasting, significant effect on these rights 74, Itis undisputed that during the period March 11, 2024 to the date of filing of this action, the Board of Zoning Appeals did not grant a change of use of the VDG Disputed Parcel from Repair Garage & Vehicle Sales Facility to Restaurant, fast-food, with drive through operations. 75, Contrary to the BZA’s Decision And Order Condition (w), Defendants VDG and CFA are and have expanded the area of the site by utilizing, building upon and engaging in 20construction activities at the VDG Disputed Parcel despite never having received approval from the BZA. 76. Defendants VDG and CFA are undertaking to demolish an existing building and construct a new restaurant upon the VDG Disputed Parcel by utilizing this property as patt of the overall development of a CFA restaurant, despite its location immediately adjacent to Plaintiff THE GIVING TREE in violation of Detroit City Code Section 50-12-131 without prior approval of the BZA and a residence at 4104 University Place in an R-1 zoning district, 77. Defendants tivities in demolishing and beginning site work and construction of a restaurant are a nuisance as they are occurring on VDG Disputed Parcel despite that it has not received a land use change approval by the BZA, constitute an unapproved use in violation of the Detroit City Code and the violation of the ordinance constitutes a nuisance that must be abated, 78. The public has a right to ensure that Defendants” activities do not unreasonably interfere with the public’s health, safety and peace by requiring Defendants to comply with and follow local ordinances and the lawful Orders of City of Detroit Board of Zoning Appeals 79. Moreover, the demolition, site work and/or construction activities at both 17761 Mack Ave. and the VDG Disputed Parcel have resulted in demolition activities being undertaken on May 19, 2025 without proper notice to surrounding residents and/or proper safety precautions, exposing the public to injury and resulting in a directive to stop-work on May 19, 2025 until the same were remedied, 80, Once open, CFA’s drive-through restaurant will result in severely increased traffic congestion on Mack Avenue and the surrounding restaurant and the increase traffic by patrons attempting to avoid the congestion by using and traveling onto and down Plaintiff's 4531 21Marseilles property, impacting and harming all residents on Marseilles and University Place streets. 81. The impact on Plaintiff's school, however, is especially acute and differs from that of the public generally, as by constructing and using the parking lot, circulation route, stacking lanes and vehicle waiting lanes immediately adjacent and along the boundary line with Plaintiff's property —literally within 6 feet of the Plaintiff's playground—results in and will continue to result in significant harm to the children attending Plaintiff’s school, who are being exposed to demolition debris, dust, excessive noise in violation of the decibel levels required by the ordinance and with the opening of the restaurant, the exposure of the children to motor vehicle idling and exhaust fumes, noise pollution in the forms of loud music and phone calls, order station call box, marijuana smell and other resulting impacts from two drive-through only lanes. Therefore, Plaintiff can maintain this claim as it has suffered a type of harm different from that of the general publie. 82. Asa direct and proximate result of Defendants’ wrongful conduet, violations of ordinances and unreasonable interference with the public’s health, safety, peace, comfort or convenience, Defendants VDG and CFA actions have resulted in the creation of public nuisances which must be abated. WHEREFORE, Plaintiff THE GIVING TREE respectfully requests the trier of fact enter Judgment in its favor and against Defendants VDG and CFA on Court III as follows: A. Defendants VDG and CFA, their agents, employees, officers and any person or entity acting on its behalf or in active concert with it, shall be temporarily and preliminary enjoined from (a) building upon or engaging in demolition or construction activities on the VDG 2Disputed Parcel; (b) using the VDG Disputed Parcel as a restaurant without prior approval of the BZA; (c) locating that portion of the restaurant property upon the VDG Parcel within 500 feet of Plaintiff without prior approval of the BZA; (d) maintaining any public nuisance at 17761 Mack Ave. or the VDG Disputed Parcel; and (e) grant such other and further relief as the Court deems, just and proper. COUNT IV NEGLIG! 83. Plaintiff THE GIVING TREE repeats and incorporates by reference the allegations contained within Paragraphs 1 through 82 as if fully set forth herein. 84, Defendants VDG and CFA each have breached their duties to Plaintiff to exercise reasonable care and to not create and/or cause an unreasonable risk of harm to Plaintiff by using land and developing real property without permission of and/or circumventing the procedures to obtain approval from the Zoning Board of Appeals and by violating the Detroit ordinance per se. 85. Defendants VDG and CFA each breached their duties owed to Plaintiff to not violate a city ordinance(s) and decisions from zoning authorities and engage in activity that creates a nuisance, directly impacting Plaintiff. 86, Further, De! ndants VDG and CFA each breached their duties owed to Plaintiff to use ordinary care but also as a result of the duty imposed by the Detroit City Code upon a landowner to not operate a fast-food restaurant within 500 feet of a school without permission and to exercise greater vigilance in their location, use, use expansion of 17761 Mack, and development of a fast-food restaurant so as to ensure their restaurant is not immediately adjacent toa school playground, knowing or should have known that children were or likely to be in the vicinity. 2387. That imespective of its receipt of site plan approval by the City of Detroit, the location, demolition, expansion and development of a fast-food restaurant within 500 feet of a school without permission as to the VDG Disputed Parcel constitutes a nuisance and is conduct that demonstrates a breach of duty and a substantial lack of concem for whether injuries result from their conduct. 88, Additionally, the violation of the applicable City of Detroit ordinances as established above are incorporated herein by this reference and constitute evidence of negligence, 89. That Defendants’ actions coupled with the violation of their respective duties are the actual and proximate cause of Plaintiff's injuries and damages. 90. That as a direct and proximate result of the Defendants’ actions, Plaintiff has suffered special damages as well as substantial damages, costs and expenses, including attorney fees, WHEREFORE, Plaintiff THE GIVING TREE respectfully requests the trier of fact enter Judgment on Count IV in its favor and against Defendants VG and CFA in an amount determined by the trier of fact, that the Court enter preliminary and permanent injunctive relief preventing continuing negligent conduct by Defendants VDG and CFA and grant such other and further relief as the Court deems just and proper. 24Dated: June 13, 2025 25, Respectfully submitted, LAW OFFICES OF THOMAS H. STIDHAM si Thomas Stidham Thomas H. Stidham (P56504) 1401 W. Fort St., Ste. 44-1815 Detroit, MI 48244 (248) 303-0306 Attorney for Plaintiff Tsstidham@hotmail.comSTATE OF MICHIGAN IN CIRCUIT COURT FOR THE COUNTY OF WAYNE THE GIVING TREE MONTESSORI Case No, 25- -CB LEARNING CENTER, INC Hon. Plaintiff, S DG DETROIT, LLC, a Michigan Limited Liability Company, And CHICK-FIL-A, INC., a Georgia Corporation, Defendants, INDEX OF EXHIBITS TO PLAINTIFF’S COMPLAT A- BSED Letter dated January 5, 2024 B- CFA’s Preliminary Site Plan C- Board of Zoning Appeals Minutes of March 11, 2024 D- BZA Decision And Order Recorded on January 22, 2025 E- BZA Decision And Order Recorded on February 5, 2025 F- BZA Notice Of Hearing for May 12, 2025 - Consent Order Quieting Title To Real Property dated 4/26/24 and Exhibit A H- Site Plan approved on April 4, 2025 I~ Selected Photographs of the VDG Disputed Parcel, the School and 17761 MackEXHIBIT “A”BUILDINGS, SAFETY ENGINEERING — ColemanA.Young Municipal Center Phone 313-224-2739 TT} 71 ZWoodwardAvenue Fourth Floor Fax 3132241867 AND ENVIRONMENTAL DEPARTMENT 5 rou. Michigan 48226, www detroitmi gov/BSEED BSEED CaseNo: SLU2023-00146 Property Address: 17761 Mack Ave Decision Date: January 5, 2023 Effective Date: January 19, 2023 Applicant Owner Leslie Accardo Chick-Fil-A PEA GROUP 5200 Buffington Road 1849 Pond Run Atlanta GA 30349-2998 Auburn Hills Mi 48326 Request: Demolish an existing building and construct a new 2,950 square foot Restaurant, fast-food, with drive-up or drive-through facilities. Location 17761 Mack Ave between Marseilles Street and University Pl in a B4 (General Business) Zoning District and legally described as: N MACK ALL THAT PT OF 40 DESC AS BEG AT INTSEC OF WLY LINE MACK AVE 120 FT WD WITH SWLY LINE MARSEILLES AVE 75 FT WD TH S 16D 24M W 181.10 FT ALG WLY LINE MACK AVE TH N 28D 5AM 108 W 295 ET THN 16D 24M F 192.23 FT TH S 28D 48M F 295.86 FT ALG SWLY LINE MARSEILLES AVE TO POBRIVARD PARK SUB 120 P57 PLATS, W C R 21/836 181.10 IRREG (PIN 21001579.002L) ‘The current legal land use of the subject property is "Repair Garage & Vehicle Sales Facility ("former Ray Laethem Buick Truck Sales building)” viz building permit 71149 issued June 29, 1965, and permit 90155 issued June 25, 1973. The site is currently zoned B4 (General Business District). The development shall consist of the demolition of the existing facility for a new 2,950 square foot Chick-fil-A fast food restaurant with drive-through only lanes. No internal seating will be provided for customers. Features include an outdoor patio, walk up ordering, new landscaping, and masonry wall. All traffic to the site will be from Marseilles Street only with a 10-foot-wide escape lane to exit onto Mack Avenue. However, the proposed escape lane does not encompass the entire drive-through lane. Per Section 50-14-202 ("Minimum number of spaces”), four stacking spaces are required for fast-food restaurants with drive-thru lanes (Order hox to pick-up window"); nine stacking spaces are provided on the revised site plan (Sheet C-200), thus fulfils the requirement.SEED Case No. sL2023-00146 Property Address: 17761 Mack Ave Decision Date: January 5, 2024 Effective Date: January 19,2024 Per Section 50-14-51 (“Food and beverage service”), 29 off-street parking spaces (or one space per 100 square feot of restaurant building and designated outdoor seating area + stacking spaces) is required for the 2,950 square feet fast-food restaurant. Per Section 50-14-49 ("Retail, service, and commercial uses located on land zoned SD1 or SD2 or where the use is located within 0.50 miles of a high-frequency transit corridor”). BSEED can reduce the parking requirement by 25% (or 22 required off-street parking spaces) as Mack Avanue is 9 high-frequency transit corridor. 23 off-street parking spaces (including two handicapped accessible space) are provided on Sheet C-200; thus meets the parking requirement. The representative from Click-Fil-A, did indicate on the record, they will hire over 100 employees. ‘This request has been processed in accordance with the provisions of Sections 50-3-241, 50- 2) and 50-12-2190 of the Detroit Zoning Ordinance, Chapter 8 and the following submittals were considered as part of this request: 1. Preliminary plans, including site plan, floor plan & elevation drawing, resubmitted on 8/17/2023, approved by BSEED on 9/5/2023 and including Site Plan, Floor Plan, Elevations Plan and Traffic Study; and 2. Recommendation to approve with conditions from the Detroit Planning & Development Department received 11/8/2023. Our department held a public Zoom hearing on 10/18/2023. Notice of this hearing was published in the Detroit Legal News on 10/3/2023 and mailed to res owners within 300’ of the subject site. Besides City of Detroit staff, 42 people attended the hearing including Chris Jackson (consultant) Justin Lark (Chick-Fill-A), Lesile Accardo (civil engineer), Matt Berko (Versus Group) Frank Acando and Greg Newman (developers), 5 people spoke in support and 31 people who spoke in opposition. This department received 21 letters of support and 59 letters of opposition. nts and property After careful consideration, we were unable to make the required findings of fact per Section 50-3-281, specifically: A) That the applicant failed to provide emission data on the numerous vehicles that would he idling in the drive-thru stacking lane. The proposed fast food restanrant abuts an open daycare facility, the play area would be adjacent to the proposed stacking area, thus the proposed land use may be detrimental to or endanger the social, physical, environmental or economic well-being of surrounding neighborhoods, or aggravate any preexisting physical, social or economic deterioration of surrounding neighborhoods; and B) Per testimony from Chick-Fil-A representatives, they will hire over 100 employees. Only 22 parking spaces will be provided for employees and customers.SEED Case No. suU2023-00146 Property Address: 17761 Mack Ave Decision Date: January 5, 2024 Effective Date January 19,2024 Even with employees on different shifts, the proposed parking will not accommodate, the massive amount of customers Chick-Fil-A is known for, and will impeded on the enjoyment of other properties in the immediate vicinity for the purposes permitted. ©) The proposed conditional use will hinder and have a detrimental effect upon vehicular turning patterns, ingress/egress, traffic flow, nearby intersections, traffic visibility and other vehicular and pedestrian traffic patterns in the vicinity; as the proposed escape lane does not encompass the entire drive-through lane, customers are stuck in the drive-through lanes, after the order points. D) The applicant failed to provide a revised site plan, that would locate the primary ingress and egress on to Mack Ave, this would reduce the traffic flow on ta Marseilles street and the adjacent daycare facility. E) The applicant has otherwise failed to meet its burden and satisfy other general approval criteria outlined in Section 50-3-281 of the 2019 Detroit City Code. More specifically, the applicant has not provided evidence which demonstrates: a. The conditional use sought will not substantially diminish or impair property values within the neighborhood, b. The conditional use sought will be compatible with the capacities of public services and public facilities that are affected by the proposed se Adequate utilities, access roads, drainage, and other necessary faci have been or will be provided. ies 4. The conditional use sought will be compatible with land uses on adjacent and nearhy zoning lots in terms of location, size, and character e. The conditional use sought is so designed, located, planned, and will be operated so that the public health, safety, and welfare will be protected. Therefore, this request is DENIED. This decision will become effective January 19, 2024. However, Section $0-3-302 of the Zoning Ordinance provides the right to appeal this decision to the Board of Zoning Appeals prior to the effective date of this decision. A fee may be required for an appeal to the Board of Zoning Appeals. All appeals must be made in by emailing Zoning@detroitmi.gov.4 SEED Case No: suUz023-00146 Property Address 17761 Mack Ave Decision Date: January 5, 2024 Effective Date: January 19, 2024 It shall be the responsibility of the person or organization who files an appeal, or his/her duly authorized representative, to attend and testify at the Board of Zoning Appeals hearing as to why the original decision of this Department should not take effect. If no written appeal is filed prior to the effective date of this decision, the denial shall be deemed final and the use shall cease immediately. No application which has been denied wholly or in part shall be submitted for a period of one (1) year from the date of said order of denial, except on the grounds of new evidence or proot of changed conditions. Sincerely, and f David Bell Director pB/PEXHIBIT “B”EXHIBIT “C”9:45am, CASE NO.: BZA PETITIONER: LOCATION: 4 MARCH 11, 2024 14-24 — Council District #4 LESLIE ACCARDO, PEA Group for Chick-Fil-A 17761 Mack Ave, between Parker and Van Dyke in a 84 (General Business District) LEGAL DESCRIPTION OF PROPERTY: _N MACK ALL THAT PT OF 40 DESC AS BEG AT INTSEC OF PROPOSAL: ACTION OF THE BOARD: WLY LINE MACK AVE 120 FT WD WITH SWLY LINE MARSEILLES AVE 75 FT WD TH ‘3 16D 24M W 181.10 FT ALG WLY LINE MACK AVE TH N 28D 58M 10S W 205 FT TH 'N 16D 24M 182.23 FT TH S 28D 48M E 295.86 FT ALG SWLY LINE MARSEILLES AVE TO POBRIVARD PARK SUB L20 P57 PLATS, W C R 21/836 181.10 IRREG. Leslie Accardo, PEA Group for Chick-il“A appeals the decision of the Buildings Safety and Engineering and Environs '$LU2023-00146 Decision Date: January 5, 2023, Effective Date: 2023) which DENIED demolishing an existing building and construct a new 2,950 square foot Restaurant, fast-food, with drive-up or drive-through facilities in a B4 General Business District. The Board of Zoning Appeals shall hear and decide appeals from and review any order, requirement, decision, oF determination that le made by an adminietrative official in the administration of this Zoning Ordinance, or any decision made by the Buildings and Safety Engineering Department involving Conditional Uses, Regulated Uses, or Controlled Uses, or any denial of a site plan by the Planning and Development Department. (Sections 50-4-101 Jurisdiction ‘Over Appeals of Administrative Decisions and 50-3-281- General Approval Criteria). AP “Mr. Roberts made a motion to (1) Reverse the BSEED Denial and (2) impose a condition that the petitioner amend its existing plan to locate the facility's primary entrance and exit on Mack Avenue for the protection of tho public interest, health, safety, welfare, and environment. Seconded by Board Member Weed. Affirmative: Mr. Weed, Roberts, Thomas, Sherman, Boman Ms. Hill-Knott Negative: Mrs. Moore BSEED DENIAL OVERTURNED WITH CONDITIONSEXHIBIT “D”"25 BNAN-22 mH 2 348 CITY OF DETROIT BOARD OF ZONING APPEALS DECISION AND ORDER “Bernard J. Younsbiced Wayne County Repister of IN RE APPEAL BY BZA PETITIONER: fa BZA CASE NO.: 14-24 A 8 LOCATION: 17761 MACK AVE., between Marseilles and University Pl in a B4 zone (General Business District). City Counell District #4 LEGAL DESCRIPTION: N MACK ALL THAT PT OF 40 DESC AS BEG AT INTSEC | OF WLY LINE MACK AVE 120 FT WD WITH SWLY LINE MARSEILLES AVE 75 FT WD TH S 16D 24M W 181.10 FT. ALG WLY LINE MACK AVE TH N 26D 58M 10S W 295 FT TH N 16D 24M E 162.23 FT TH S 28D 48M E 205.86 FT ALG SWLY LINE MARSEILLES AVE TO POBRIVARD PARK SUB L20 P57 PLATS, W C R 21/636 181.10 IRREG PETITIONER: LESLIE ACCARDO, PEA GROUP FOR CHICK-FIL-A 1849 POND RUN | AUBURN HILLS, Ml. 48326 | PETITION: Lestie Accardo, PEA Group for Chick-fil-A appeals the | decision of the Buildings Safety and Engineering and Environmental Department (BSEED SLU2023-00146 Decision Date: January 5, 2023, Effective Date: January 19, 2023) which DENIED demolishing an existing building and construct a new 2,950 square foot | Restaurant, fast-food, with drive-up or drive-through | facilities in a B4 General Business District. HISTORY OF SUBJECT PROPERTY BEFORE THE BZA: ‘This property has no history before the Boar, |2025417248 Page 2.0f 12 Page 2 Case No. 14-24 PETITIONER'S REQUESTED ACTIONS: Leslie Accardo, PEA Group for Chick-fil-A appeals the decision of the Buildings Safety and Engineering and Environmental Department (BSEED SLU2023-00146 Decision Date: January 5, 2023, Effective Date: January 19, 2023) which DENIED demolishing an existing building and construct a new 2,950 square foot Restaurant, fast-food, with drive-up or drive-through facilities in a B4 General Business District. PETITIONER'S STANDING TO BRING APPEAL: ‘The Law Department has determined that the petitioner does have standing to bring this request to the Board, BZA'S AUTHORITY TO CONSIDER PETITIONER'S APPEAL: ‘The Board of Zoning Appeals shall hear and decide appeals from and review any ‘order, requirement, decision, or determination that is made by an administrative official in the administration of this Zoning Ordinance, or any decision made by the Buildings and Safety Engineering Department involving Conditional Uses, Regulated Uses, or Controlled Uses, or any denial of a site plan by the Planning and Development Department, PUBLIC NOTICE AND HEARING: On February 21, 2024, 37 notices of the Board's public hearing were distributed via certified mail to (1) ali persons whose names and mailing addresses appeared in the current assessment roll as owners of property located within 300 feet of the exterior boundaries of the Subject Property, (2) the occupants of all single and two-family dwellings located within 300 feet of the exterior boundaries of the Subject Property, and (3) all neighborhood improvement associations whose subject areas are known to be ‘ocated within at least 300 feet of the exterior boundaries of the Subject Property. (On March 11. 2024 the Board held a public hearing to consider the Petitioner's appeal. in advance of and during the public hearing, the BZA was presented with the following testimony, documents, and other information pertinent to the Petitioner's appeal. Information from BZA Staff: * BZA Appeal Petition filed January 17, 2024 * BZA Staff Report prepared by Inspector April Purofoy * Shoto Presentation of BZA Staff Field Inspection, conducted on March 11,17248 Page 3 of 12 Page 3 Case No. 14-24 Information from Petitioner: * Testimony of the Petitioner a: Petitioner testified that they purchased the property with the intention of demolishing the existing building and construct a new fast food restaurant with drive through only lanes (Chick-fil-A) to service the ‘surrounding community. No intemal seating will be provided. Petitioner further testified that their site plan was approved by BSEED and @ recommendation to approve was given from the Planning and Development Department. Petitioner further testified that have engaged with the community to explain their intentions for the land and there are mixed feelings but they believe the proposed use would be a great asset to not only the City of Detroit but the surrounding community. Petitioner further testified that traffic around the site was evaluated via @ required, extemal traffic study, as mandated and evaluated by DPW and there was a recommendation to approve the TIS and the project from a traffic point of view. . Petitioner further testified that they would continue to reach out to the ‘community to build a better relationships. Petitioner further testified that despite the finding that the applicant failed to provide emission data on numerous vehicles that would be idling in the drive thru there was a report that was ordered immediately and a report was delivered that states the proposed project will comply with Michigan Air Pollution Control Rules and Clean Alr Act requirements and emissions related are similar to other restaurants that are currently operating in Detroit and throughout Michigan. Petitioner further testified that the denial letter states that the proposed parking will not accommodate, the massive amount of customers Chick-FiLA is known for and would impede the enjoyment of other properties in the immediate vicinity for the purposes permitted but that ‘statement runs directly counter to the requirements of the zoning ordinance and BSEED’s own approval of the parking present in the site plan which were approved. Petitioner further testified that they don't believe the proposed conditional use will hinder or have a detrimental effect upon vehicular turing patters, ingress/egress or traffic flow as the site plan was approved and the approval of the traffic impact study.202817248 Page 4 of 12 Page 4 Case No. 14-24 9. Petitioner further testified that there is no evidence that the addition of the proposed restaurant with a drive thru will diminish property values In the Comerstone Neighborhood. 10. Petitioner further testified that it was confirmed by DPW and P&DD that the design with ingress and egress on Marseilles was the best option. 11. Petitioner further testified that they were trying to attempt from a design Perspective to mitigate issues by keeping the bullding further away from the Day Care Center. 12. Petitioner further testified that when an emission study was mentioned they did in fact pay for that study to be done and it was found that the Proposed restaurant would pose no harm to the surrounding ‘community. 13.Petitioner further testified that the request will have no significant adverse impact on the health, safety or general welfare of the surrounding property owners. ‘14.Petitioner further testified that the operator is very experienced at a fast food restaurant with stacking of cars to make sure it is not injurious to the neighborhood the restaurant would occupy. 15.Petitioner further testified the proposed use will place no additional unique or undue burden beyond any other fast food restaurant. The Presence of a drive through does not increase the demand for public services, 16. Petitioner further testified that the development was approached with Significant care and attention to the location, site orientation and operations on this stie. 17. Petitioner further testified that all required City Departments evaluated and approved the site plan, inclusive of traffic flow (vehicular and pedestrian) within the site. ‘18.Attomey for BSEED stated the BSEED's denial of the applicant's conditional land use application was based on the fallure to Semonstrate that the use would satisfy the requirements of Section 60. 281. 19.Attomey for BSEED also stated that primary concems were that there Was a lack of parking spaces, and the proposed traffic routing would be detrimental to or endanger the social, physical, environmental or economic well being of the surrounding neighborhood and cause other negative impacts as described in the denial letter provided by BSEED.“ 202517248 Page 5 of 12 Page 5 Case No. 14-24 20.Attomey for BSEED further stated that the case is unique as multiple department within the City of Detroit have taken different position regarding the suitability of the property as a fast food restaurant with drive up or drive through facilities, particularly a Chick-FiLA which is ‘commonly believed to have long queuing lines that can result in traffic backups. 21.Attomey for BSEED further stated that on the other that the jobs the use would provide from a reputable fast food chain at this site would spur redevelopment in the area. 22. Attorney for BSEED further stated despite the City's position regarding changing the site plan due to concems of traffic problems the applicant Tefused to reorient the restaurant drive through to address the City's concems. 23.Attomey for BSEED further stated that after holding the special tand use hearing BSEED found that the applicant was unable to meet the general approval criteria of Section 50-3-281 of the Code largely due to detrimental effects of the anticipated large numbers of vehicles queuing and expected traffic backups. Information from the Public in Support of Petitioner's Appeal: 1. Support for the development stated that the proposed restaurant would be a welcome addition to this neighborhood and don't believe the additional traffic In the area would be of concem. 2. Support also stated that the developers did do substantial community engagement and explained every aspect of the development. 3. Support further stated that due to the integrity of the company they believe property values could increase. Information from the Public in Opposition to Petitioner's Appeal: 1. Opposition for the development stated that traffic is already an issue in this area and this development would increase traffic and be harmful to ‘surrounding residents especially children. 2. Opposition for the proposed development state they have no Issue with the ‘company but this location is not the right fit for the proposed restaurant. 3. Opposition also stated that they believe property values would diminish due to the increase In car traffic and the safety concems that additional cars would bring to this community, 4. Opposition also stated that the layout of the proposed development would Increase the danger for the children in this community,17248 Page 6 of 12 Page 6 Case No. 14-24 BZA DECISION: WHEREAS, the BZA has authority under the Detroit Zoning Ordinance to consider this appeal and the Petitioner has standing to bring this appeal before the BZA; and WHEREAS, the BZA has provided public notice of this appeal in accordance with the Michigan Zoning Enabling Act and the Detroit Zoning Ordinance; and WHEREAS, the BZA staff has reviewed this appeal, conducted field inspections of the Subject Property, and reported its findings to the BZA; and WHEREAS, the BZA has held a public hearing on this appeal, during with the Petitioner, relevant City Departments, and all members of the public who desired to be heard were provided opportunity to provide testimony, documentation, and other information relevant to this appeal; and WHEREAS, the Petitioner has been given the opportunity to present this appeal before the BZA; and WHEREAS, all testimony, documentation, and other information submitted to the BZA prior to or during the public hearing has been provided to the BZA for consideration; NOW THEREFORE: After careful consideration and based on the following findings, Board Member Boman offered a motion to Reverse the BSEED decision which DENIED demolishing an existing bullding and construct a new 2,950 square foot Restaurant, fast-food, with drive-up or drive-through facilities in a B4 General Business District with the condition that the site plan be revised to close any ingress and egress on Marsellles street and only have It on Mack Ave. This motion was seconded by Board Member Weed. 1, The Board found that they believe the BSEED made the wrong decision to Deny the request due to the lack of proof that there is inadequate drainage for the site or that the proposed use would not be compatible with adjacent land uses in terms of location size and character. 2. The Board also found that the petitioner followed the process to comply to bring this project to this area and there is a large amount of support for the use. 3. The Board found that conditionally supporting the reversal of BSEED's decision is ‘appropriate provided the entrance and exits on Marseiles are moved to only on ve. 4. The Board further found that they can impose reasonable conditions under ‘Section 50-3-14 and 50-3-15 to protect the public interest.17248 Page 7 of 12 Page 7 Case No. 14-24 THEREFORE: The Petitioner's appeal is hereby GRANTED, thereby Reversing the BSEED Decision. (a) ‘That the appellant agrees to abide by and comply with all of the ordinances of the City of Detroit and the regulations of every lawful agency ‘r public authority now or hereafter in force, it being understood that this grant only authorizes a variance or exception of the regulations of the Zoning Ordinance and is not intended to waive the provisions of any other existing statute, ordinance rule or regulation, (b) Any decision of the Board will remain valid only as long as the information or data relating thereto are found to be correct and the conditions upon which the resolution was based are maintained. © ‘That a Building Permit covering this grant MUST be secured from the Department of Buildings and Safety Engineering, 4" Floor, City-County Bling, This grant shal automaticaly become null and vgid If his permit Is not secured by a Shoe DSB () Acceptance of these conditions, in writing by the owner or the petitioner shall be binding on the petitioner, or operator, and shall be incorporated into any existing or future lease or purchase agreement for this site. e ‘That the construction, additions, alterations or use shall be in accordance with the conditions accompanying this grant. © ‘That before the Director of Buildings and Safety Engineering Department ‘shall issue a Building Permit for this use, the appellants LESLIE ACCARDO, PEA GROUP FOR CHICK-FIL-A_shall record this grant with the Wayne County Register of Deeds Office. (9) This Grant is only to establish an accessory 13 space parking lot on vacant land in a R2 zone. Accessory uses not specified in this grant are neither implied nor permitted, under this Grant this use cannot be expanded, enlarged, or altered in any manner, nor can any conditions be modified in any manner unless written permission is given by the Board of Zoning Appeals. (h) The appellant MUST comply with all other Zoning Codes and Regulations and obtain the required permit within SIX (6) MONTHS of the date of approval for this use or this grant shall become null and void pursuant to SECTION 50-4-38 AND SECTION 50-5-55 of the Detroit Zoning Ordinance.2028417248 Page 8 of 12 @ @ Page 8 Case No. 14-24 void. Where the conditions that are prescribed by the Buildings and Safety Engineering Department or Board of Zoning Appeals in making any zor grant or finding are not complied with within six (6) months from the issuance of a land use permit and maintained at all times thereafter, the Buildings and Safety Engineering Department shall hold a hearing, Pursuant to Sec. 50-7-53 of this Code, for the permit-holder to show cause why the land use permit should not be revoked. Immediately upon evocation of the land use permit, the zoning grant by the Buildings and ‘Safety Engineering Department or Board of Zoning Appeals becomes null and void, and the department shall notify any applicable licensing ‘departments or agencies of the revocation. Sec. 50-5-74, Revocation; required findings. The Buildings, Safety Engineering and Environmental Department may revoke land use rights upon making one (1) or more of the following findings: (1) That the land use grant, variance or permit was approved on the ‘basis of erroneous or misleading information or misrepresentation; (2) That the terms or conditions of approval of the permit have been violated, the use has become a nuisance and/or is injurious to the adjacent and surrounding property owners or the applicant has failed to comply with all applicable local, state and federal codes ‘and ordinances; or (3) That there has been a discontinuance of the exercise of the entitlement granted by the permit for a continuous period of at least six (6) months. Operation of the facility shall at all times be operated ina manner not detrimental to surrounding properties or residents. Site activities shall not Produce or be reasonably anticipated to produce any of the following: (1) Damage or nuisance from noise, smoke, odor, dust or vibration, (2) Hazard from explosion, contamination of fire; (8) Hazard occasioned by the unusual volume or character of traffic, or the congregation of a large number of people or vehicles, This use is permitted as long as no nuisance is created by this operation ‘and ALL CONDITIONS ARE COMPLIED WITH.“2028417248 Page 9 of 12 «) 0 (m) () (0) (p) (@) o (0) Page 9 Case No. 14-24 It is ordered that all conditions pertaining to this Grant shail be binding on the petitioner, assignees, purchasers, partnership, firm, corporation. tenant or any other similar entity. The appellant shall comply with all applicable provisions of the Ordinance and shall maintain the exterior of the building in a subdued color that is aesthetically compatible with the surrounding development and in a good state of repair and appearance at all time. ‘The entire parcel shall be kept free of rubbish, debris and weeds, including the adjoining public areas between the sidewalk and the curb, The entire parcel shall be maintained in a neat and orderly manner at all times. ‘The appeltant shall comply with all applicable provisions of Fire Prevention Ordinance and submit a fully dimensioned set of final plans to the Detroit Fire Department, Office of the Fire Marshal for proper review and approval. Both addresses will need to be combined or in process of being combined with the Assessors Division at time of permit submission. ‘The applicant will need to apply for a maintenance agreement with DPW City Engineering, Division to utilize the rear, open public alleyway for vehicular access, off street loading, etc. ‘The proposed wood fence is not an approved material for residential ‘screening under Section 50-14-342. The masonry wall shall be 4 to 6 feet in height. That any proposed right of way improvements (vehicular ingress and egress, sidewalks, etc) shall be reviewed and approved by the Department of Public Works in accordance with the provisions of Chapter 50, Article IV of the Detroit City Code prior to issuance of a building permit. ‘Site Development Standards: (1) There shall be no extemal evidence of the service operations, in the form of dust, odor, or noise, beyond the interior ofthe service ing.2025917248 Page 10 of 12 (p) (a) @ G) Page 10 Case No. 14-24 Solid Waste Management: In accordance with in accordance with all of the following standards: (1) That there be no open storage of any kind, including any rubbish or debris generated by this operation. All such materials shall be kept within the buliding or be kept in on site covered dumpsters or approved containers until removed from the site. (2) The appeliant shall provide commercial type dumpsters or containers of sufficient size and quantity to property contain to properly contain all discarded items resulting from this operation. ‘SCREENING/FENCING: (1) That no razor wire be installed or allowed to remain anywhere on the subject building or property. All barbed wire installed on the property shall comply with the Municipal Code regarding fences. (2) The appoliant shall keep all fences and walls surrounding the Property clean and free of all posters, banners signage and graffiti. Sign Regulations: In accordance with in accordance with all of the following standards: ) ‘Any and all business signage in connection with this Proposal and property shall come in compliance NO. 28-09 amending Chapter 3 of the Municipal Code titled Advertising Signs and Article Vil Regulation of Business Signs effective December 4, 2009, @) Unless otherwise specified, only business, directional and Kerticaton signs are permitted; all advertising signs are ibited. @) ‘The petitioner shall comply with all applicable provisions of Article VI Division | of the City of Detroit Zoning Ordinance. That all steps as necessary be taken by the owner/operator to prevent {oltering in the vicinity of this use, including the use of doormen, bouncers and parking lot security. No activity whatsoever shall be permitted in Parked vehicles and/or in the parking lots including, but not limited to, Stinking, drug use, reading, eating, sleeping and sexual activities of any“2025417248 Page 11 of 12 (s) ® (u) ™ (w) (x) wy) ® Page 11 Case No. 14-24 The appellant shall take all measures necessary to prevent the inhabitation of rodents on this property. The appellant shall maintain the entire site in a state of good repair and appearance at all times. ‘That final plans are in accord with the preliminary plans submitted to and approved by the Board at the BZA hearing, and shail meet all conditions of the grant. Three (3) complete sets of final plans incorporating all conditions of this grant shall be submitted to the Buildings and Safety Engineering Department to secure Buildings and Occupancy Permits. ‘That a ‘Certificate of Maintenance of Grant Conditions” be obtained annually by the owner/operator of the subject premises/use; and further, that the proper application for such Certificate be filed with the Buildings and Safety Engineering Department no later than each annual anniversary of the effective date of this grant. ‘The appellant is prohibited from expanding the scope and area of the site or increasing the type of activities beyond the scope and nature of the ‘operation without prior approval of the Board of Zoning Appeals. ‘That occupancy of the premises, without full compliance with all of the Conditions, is unlawful and subject to penalties as provided in Section 61- 4-41 of the Ordinance, which may include the revocation of the grant and/or daily fines. ‘That this Grant from the Board of Zoning Appeals is valid pursuant to the Petitioner complying with all of the above stated conditions at all times. This grant is only for the establishment of a parking lot only. Only operable vehicles are allowed on this property. Storage is not allowed in the parking lot. CAUTION The granting of an appeal by the Zoning Board of Appeals pertains only Zoning regulations. The grant does not abrogate or release the grantee from complying with all laws relating to safety, stability, health, etc., as required by the Building, Housing, Electrical, Plumbing and other Municipal Codes2025qh7248 Pa Page 12 Case No. 14-24 12 0f 12 FINAL DECISION Any decision of the Board of Zoning Appeals may be appealed to Circuit Court as specified in 125.585 (MSA 5.2935) of the Zoning Enabling Act of Michigan, Act 207 of the Public Acts of 1921, as amended. This Decision and Order is validated by the Michigan Zoning Enabling Act, that being 125.3605 Decision as final; appeal to circuit gourt, Sec. 605. The decision of the zoning board of appeals shall be final. A party aggrieved by the decision may appeal to the circuit court for the county in which the property is located as provided under section 606.125.3606 Circuit court; review; duties, Sec. 606(3)(a). AND Sec, 50-2-81. Appeals from the Board. Any decision of the Board may be appealed to Circuit Court as Specified in Sections 605 and 606 of the Michigan Zoning Enabling Act, being MCL 125.3605 and 125.3606. An appeal from a decision of the Board shall be filed within 30 days after the Board issues its decision in writing signed by the chairperson or within 21 days after The court may affirm, reverse, or modify the decision of the Board. ‘The court may make other orders as justice requires. The minutes of the Board of Zoning Appeals decision in this case were approved by the Board during its public hearing meeting held ‘on March 18, 2024, GERFITIFIED COPY FROM THE BOARD OF ZONING APPEALS, CITY OF DETROIT FOR THE WAYNE COUNTY REGISTER OF DEEDS.EXHIBIT “E”5 FEBS Pid St IN RE APPEAL BY BZA PETITIONER: BZA CASE NO.: LOCATION: LEGAL DESCRIPTION: PETITIONER: PETITION: TRUE a CITY OF DETROIT BOARD OF ZONING APPEALS DECISION AND ORDER Bernard J. Youngblood Wayne’ County” Register of Dees 14-24 17761 MACK AVE., between Marseilles and University PI in a B4 zone (General Business District). City Council District #4, N MACK ALL THAT PT OF 40 DESC AS BEG AT INTSEC OF WLY LINE MACK AVE 120 FT WD WITH SWLY LINE MARSEILLES AVE 75 FT WD TH S 16D 24M W 181.10 FT. ALG WLY LINE MACK AVE TH N 28D 58M 10S W 295 FT. TH N 16D 24M E 182.23 FT TH S 28D 48M E 295.86 FT. ALG SWLY LINE MARSEILLES AVE TO POBRIVARD PARK SUB L20 P57 PLATS, W G R 21/836 181.10 IRREG LESLIE ACCARDO, PEA GROUP FOR CHICK-FIL-A, 1849 POND RUN AUBURN HILLS, Mi. 48326 Lestie Accardo, PEA Group for Chick-fil-A appeals the decision of the Buildings Safety and Engineering and Environmental Department (BSEED SLU2023-00146 Decision Date: January 5, 2023, Effective Date: January 19, 2023) which DENIED demolishing an existing building and construct a new 2,950 square foot Restaurant, fastfood, with drive-up or drive-through facilities in a B4 General Business District. HISTORY OF SUBJECT PROPERTY BEFORE THE BZA: ‘This property has no history before the Boar.202! 603 Page 20f 9 Page 2 Case No. 14-24 : PETITIONER'S REQUESTED ACTIONS: Leslie Accardo, PEA Group for Chick-fil-A appeals the decision of the Buildings ‘Safety and Engineering and Environmental Department (BSEED SLU2023-00146 Decision Date: January 5, 2023, Effective Date: January 19, 2023) which DENIED demolishing an existing building and construct a new 2,950 square foot Restaurant, fast-food, with drive-up or drive-through facilities in a B4 General Business District. PETITIONER'S STANDING TO BRING APPEAL: The Law Department has determined that the petitioner does have standing to bring this request to the Board. BZA’S AUTHORITY TO CONSIDER PETITIONER'S APPEAL: ‘The Board of Zoning Appeals shall hear and decide appeals from and review any order, requirement, decision, or determination that Is made by an administrative official in the administration of this Zoning Ordinance, or any decision made by the Buildings and Safety Engineering Department involving Conditional Uses, Regulated Uses, or Controlied Uses, or any denial of a site plan by the Planning and Development Department. PUBLIC NOTICE AND HEARING: On February 21, 2024, 37 notices of the Board's public hearing were distributed via certified mail to (1) all persons whose names and mailing addresses appeared in the current assessment roll as owners of property located within 300 feet of the exterior boundaries of the Subject Property, (2) the occupants of all single and two-family ‘dwellings located within 300 feet of the exterior boundaries of the Subject Property, and (8) all neighborhood improvement associations whose subject areas are known to be ‘ocated within at least 300 feet of the exterior boundaries of the Subject Property. On March 11, 2024 the Board held a public hearing to consider the Petitioner's appeal. {In advance of and during the public hearing, the BZA was presented with the following testimony, documents, and other information pertinent to the Petitioner's appeal, Information from BZA Staff: + BZA Appeal Petition filed January 17, 2024 + BZA Staff Report prepared by Inspector April Purofoy . Proto Presentation of BZA Staff Field Inspection, conducted on March 11,2025427603 Page 3 of 9 Page 3 Case No. 14-24 Information from Petitioner: ‘* Testimony of the Petitioner 1. Petitioner testified that they purchased the property with the intention ‘of demolishing the existing building and construct a new fast food restaurant with drive through only lanes (Chick-fil-A) to service the surrounding community. No intemal seating will be provided. . Petitioner further testified that their site plan was approved by BSEED and @ recommendation to approve was given from the Planning and Development Department. Petitioner further testified that have engaged with the community to explain their intentions for the land and there are mixed feelings but they believe the proposed use would be a great asset to not only the City of Detroit but the surrounding community. |. Petitioner further testified that traffic around the site was evaluated via a required, extemal traffic study, as mandated and evaluated by DPW and there was a recommendation to approve the TIS and the project from a traffic point of view. Petitioner further testified that they would continue to reach out to the ‘community to build a better relationships. Petitioner further testified that despite the finding that the applicant failed to provide emission data on numerous vehicles that would be \dling in the drive thru there was a report that was ordered immediately and a report was delivered that states the proposed project will comply with Michigan Air Pollution Control Rules and Clean Air Act requirements and emissions related are similar to other restaurants that are currently operating in Detroit and throughout Michigan. Petitioner further testified that the denial letter states that the proposed parking will not accommodate, the massive amount of customers Chick-FiLA is known for and would impede the enjoyment of other Properties in the immediate vicinity for the purposes permitted but that Statement runs directly counter to the requirements of the zoning ordinance and BSEED’s own approval of the parking present in the site plan which were approved. Petitioner further testified that they don't believe the proposed conditional use will hinder or have a detrimental effect upon vehicular tuming patters, ingress/egress or traffic flow as the site plan was approved and the approval of the traffic impact study.2025427603 Page 4 of 9 Page 4 Case No. 14-24 9. Petitioner further testified that there is no evidence that the addition of the proposed restaurant with a drive thru will diminish property values in the Comerstone Neighborhood. 10.Petitioner further testified that it was confirmed by DPW and P&DD that ‘the design with ingress and egress on Marseilles was the best option. 11. Petitioner further testified that they were trying to attempt from a design Perspective to mitigate issues by keeping the building further away from the Day Care Center. 12.Petitioner further testified that when an emission study was mentioned they did in fact pay for that study to be done and it was found that the proposed restaurant would pose no harm to the surrounding ‘community. 13.Pettioner further testified that the request will have no significant adverse impact on the health, safety or general welfare of the ‘surrounding property owners. ‘14. Petitioner further testified that the operator is very experienced at a fast food restaurant with stacking of cars to make sure it is not injurious to the neighborhood the restaurant would occupy. 15.Petitioner further testified the proposed use will place no additional unique or undue burden beyond any other fast food restaurant. The presence of a drive through does not increase the demand for public services. 16.Petitioner further testified that the development was approached with significant care and attention to the location, site orientation and operations on this stie. 17. Petitioner further testified that all required City Departments evaluated and approved the site plan, inclusive of traffic flow (vehicular and pedestrian) within the site. ‘18.Attomey for BSEED stated the BSEED's denial of the applicant's conditional land use application was based on the fallure to demonstrate that the use would satisfy the requirements of Section 50- 19.Attomey for BSEED also stated that Primary concems were that there was a lack of parking spaces, and the proposed traffic routing would be detrimental to or endanger the social, physical, environmental or202 Page 5 of 9 Pages Case No. 14-24 20.Attorney for BSEED further stated that the case Is unique as multiple department within the City of Detroit have taken different position regarding the suitability of the property as a fast food restaurant with drive up or drive through facilities, particularly a Chick-Fil-A which is commonly believed to have long queuing lines that can result in traffic backups. 21.Attomey for BSEED further stated that on the other that the jobs the use would provide from a reputable fast food chain at this site would spur redevelopment in the area. 22.Attorney for BSEED further stated despite the City's position regarding changing the site plan due to concems of traffic problems the applicant refused to reorient the restaurant drive through to address the City's concems. 23.Attomey for BSEED further stated that after holding the special land use hearing BSEED found that the applicant was unable to meet the general approval criteria of Section 50-3-281 of the Code largely due to detrimental effects of the anticipated large numbers of vehicles queuing and expected traffic backups. Information from the Public in Support of Petitioner's Appeal: 1. Support for the development stated that the proposed restaurant would be a welcome addition to this neighborhood and don't believe the additional traffic in the area would be of concem. 2. Support also stated that the developers did do substantial community engagement and explained every aspect of the development. 3. Support further stated that due to the integrity of the company they believe property values could increase. Information from the Public in Opposition to Petitioner's Appeal: 1. Opposition for the development stated that traffic is already an Issue in this area and this development would increase traffic and be harmful to surrounding residents especially children. 2. Opposition for the proposed development state they have no issue with the company but this location is not the right fit for the proposed restaurant. 3. Opposition also stated that they believe property values would diminish due to the increase in car traffic and the safety concems that additional cars would bring to this community. 4. Opposition also stated that the layout of the proposed development would increase the danger for the children in this community.2025927603 Page 6 of 9 Pages Case No. 14-24 BZA DECISION: WHEREAS, the BZA has authority under the Detroit Zoning Ordinance to consider thls appeal and the Potitioner has standing to bring this appeal before the BZA; and WHEREAS, the BZA has provided public notice of this appeal in accordance with the Michigan Zoning Enabling Act and the Detroit Zoning Ordinance; and WHEREAS, the BZA staff has reviewed this appeal, conducted field inspections of the Subject Property, and reported its findings to the BZA; and WHEREAS, the BZA has held a public hearing on this appeal, during with the Petitioner, relevant City Departments, and all members of the public who desired to be heard were provided opportunity to provide testimony, documentation, and other information relevant to this appeal; and WHEREAS, the Petitioner has been given the opportunity to present this appeal before the BZA; and WHEREAS, all testimony, documentation, and other information submitted to the BZA prior to or during the public hearing has been provided to the BZA for consideration; NOW THEREFORE: After careful consideration and based on the following findings, Board Member Boman offered a motion to Reverse the BSEED decision which DENIED demolishing an existing building and construct a new 2,950 square foot Restaurant, fast-food, with drive-up or drive-through facilities in a B4 General Business District with the condition that the site plan be revised to close any ingress and egress on Marseilles street and only have it on Mack Ave. This motion was seconded by Board Member Weed. 1. The Board found that they believe the BSEED made the wrong decision to Deny the request due to the lack of proof that there is inadequate drainage for the site or that the proposed use would not be compatible with adjacent land uses in terms of location size and character. 2. The Board also found that the petitioner followed the process to comply to bring this project to this area and there is a large amount of support for the use. ‘3. The Board found that conditionally supporting the reversal of BSEED’s decision is spbrghrate provided the entrance and exits on Marseilles are moved to only on ve. 4. The Board further found that they can impose reasonable conditions under ‘Section 50-3-14 and 50-3-15 to protect the public interest.(a) (b) (c) @ @ © @) That the appellant agrees to ablde by and comply with all of the ordinances of the City of Detroit and the regulations of every lawful agency or public authority now or hereafter in force, it being understood that this grant only authorizes a variance or exception of the regulations of the Zoning Ordinance and is not intended to waive the provisions of any other existing statute, ordinance rule or regulation. Any decision of the Board will remain valid only as long as the Information or data relating thereto are found to be correct and the conditions upon which the resolution was based are maintained. ‘That a Building Permit covering this grant MUST from the Department of Buildings and Safety Engineering, (BSEED) 4® Floor, City-County Building, and that the permit may be revoked by BSEED if the conditions listed herein are not satisfied within six (6) months of the effective date of this grant (pursuant to Section 50-2-77 of the Detroit City Code), subject to any extension otherwise requested by the applicant and approved by BSED (pursuant to Section 50-3-25 of the Detroit City Code). Acceptance of these conditions, in writing by the owner or the petitioner ‘shall be binding on the petitioner, or operator, and shall be incorporated Into any existing or future lease or purchase agreement for this site. ‘That the construction, additions, alterations or use shall be in accordance with the conditions accompanying this grant. ‘That before the Director of BSEED shall issue a Building Permit for this use, the appellants LESLIE ACCARDO, PEA GROUP FOR CHICK-FIL-A si ra Co ister Office. This Grant is only to demolish an existing bullding and construct a new 2,950 square foot Restaurant, fast-food, with drive-up or drive- through facilities in a B4 General Business District. Accessory uses not specified in this grant are neither implied nor permitted, under this Grant this use cannot be expanded, enlarged, or altered in any manner, nor can any conditions be modified in any manner unless written permission is given by the Board of Zoning Appeals.20; 27603 Page 8 of 9 Page 6 Case No. 14-24 (h) The applicant MUST comply with all other Zoning Codes and Regulations ‘and oblain the required permit. @ This use is permitted as long as no nuisance Is created by this operation and all CONDITIONS ARE COMPLIED WITH. 0 Itis ordered that all conditions pertaining to this Grant shall be binding on the petitioner, assignees, purchasers, partnership, firm, corporation, tenant or any other similar entity. () The entrance and exits must only be on Mack Ave. No vehicular o (m) (n) (0) () @ (0) ™) access on Marseilles is permitted. The applicant shall comply with all applicable provisions of the Ordinance and shall maintain the exterior of the building in a subdued color that is aesthetically compatible with the surrounding development and in a good state of repair and appearance at all time. The entire parcel shall be kept free of rubbish, debris and weeds, including the adjoining public areas between the sidewalk and the curb. The entire Parcel shall be maintained in a neat and orderly manner at all times. ‘The applicant shail comply with all applicable provisions of Fire Prevention Ordinance and submit @ fully dimensioned set of final plans to the Detroit Fire Department, Office of the Fire Marshal for proper review and approval. This use is permitted as long as no nuisance is created by this operation and ALL CONDITIONS ARE COMPLIED WITH, {tis ordered that all conditions pertaining to this Grant shall be binding on the petitioner, assignees, purchasers, partnership, fim, corporation, tenant or any other similar entity. ‘The applicant shall maintain the entire site in a state of good repair and appearance at all times. That final plans are in accord with the preliminary plans submitted to and ‘approved by the Board at the BZA hearing, and shall meet all conditions of the grant. Three (3) complete sets of final plans incorporating all conditions of this grant shall be submitted to the Buildings and Safety Engineering Department to secure Buildings and Occupancy Permits,603 Page 9of 9 Page 6 Case No. 14-24 w) ‘The applicant is prohibited from expanding the scope and area of the site &) or increasing the type of activities beyond the scope and nature of the operation without prior approval of the Board of Zoning Appeals. ‘That this Grant from the Board of Zoning Appeals is valid pursuant to the petitioner complying with all of the above stated conditions at all times. CAUTION ‘The granting of an appeal by the Zoning Board of Appeals pertains only Zoning regulations. The grant does not abrogate or release the grantee from complying with all laws relating to safety, stability, health, etc., as required by the Building, Housing, Electrical, Plumbing and other Municipal Codes FINAL DECISION Any decision of the Board of Zoning Appeals may be appealed to Circuit Court as specified in the Zoning Enabling Act of Michigan, Act 207 of the Public Acts of 1921, as amended. ‘The minutes of the Board of Zoning Appeals decision In this case wore approved by the Board during its public meeting held on March 1B, 2024. CERFITIFIED COPY FROM THE BOARD OF ZONING APPEALS, CITY OF DETROIT FOR THE WAYNE COUNTY REGISTER OF DEEDS. & April 16, 2024 James W. Ribbron, Director — Board of Zoning Appeals ‘Thomas Chairman of the Board “meaner are Pr Q o4EXHIBIT “F”BOARD MEMBERS Z JAMES W. RIBBRON Robert E. Thomas x Diese =a : cry ot Dero BOARD OF ZONING APPEALS oo Board of Zoning Appeals STAFF: Comat Dest 6 Coleman A. Young Municipal Center cy [THOMINA DAVIDSON Scene 2 Woodward Avenue, Ste 212 pxecUTIVE ADMINISTRATIVE Robert G. Weed Pret Oe 224-3595, ae aS 24597 ARI ‘imberiy Hin Knot eat toardaeonnggetr gov - FUROPOY Elois Moore. REGULAR MEETING OF Jerry Ws MAY 12,2025 Byron Osbern ‘Anthony Sherman Tn accordance with Section 5(4 ofthe Michigan Open Mectings Ac, MCL. 15.265(4), ‘The Board of Zoning Appeals wil hold its mectings by ZOOM you can either callin or jin by web 'We encourage the public to use one ofthe following: Khe Telephone Numbers Are: (612) 626-6799 or 213) 338-8477, Meeting ID: $16 4214 3162 It You Are Joining by Web, the Link Is: Inupsityodetrot 200m us//81 642143162 you need addtional information regarding this meeting, you can contact ether “mes Rion: (313) 939-1405 o¢ Thomina Davidson: (313) 24-3432 PUBLIC COMMENT ZOOM / IN-PERSON MEETINGS: Public Comment Zoom: 1, Telephone participants: Raise your hand by pressing “9 2. Web participants” Raise your hand by clicking raise hand inthe application or pressing a, Windows computer = (ALT) + {Y) 1b. Apple computes [OPTION] + [Y} Public Comment In-Person: ‘+ You wll be called on inthe order in which your hand is raised, public comment sign-in card wil be ised, ‘+ Alltime limits set by the meeting Chair will stil be enforced 12 Any hands eased after the Chair ends submission of public comments, will not be able to speak at the meeting All interested persons are invited o be present and be heard a other views, Persons making ora presentations are couraged to submit wnten copies tothe BZA Office IN ADVANCE OF THE HEARING: a finon/ 1a 187 464F146546990940020195 (Vou can aso email the department at the link below for the smartshee ink) via Smarshee, or email to BOARDOFZONING@DETROTIMLGOV, forthe record. PLEASE SEE THE LINK BELOW TO REVIEW THE BOARD OF ZONING APPEALS CALENDARS: lide boning i With advance notice of seven calendar days, the City of Detroit will provide interpreter services at public ‘meatings, including language translation and reasonable ADA accommodations. Please contact the Civil Rights, Inclusion and Opportunity Department at (313) 224-4960, through the TTY number 741, or email at ‘srlo@detroitmigoy to schedule these services. “This Meeting is open to all members of the public under Michigan's Open Meetings Act”815 am, ‘OPENING: A. CALLTOORDER.. B ROLLCALL MAY 12, 2025 DOCKET CONTINUED pocKeT 00 A.M. i PROCEDURAL MATTERS: m ManuTes: ‘A. APPROVALOF MINUTES: April 24,2025 N. COMMUNICATIONS: v. MISCELLANEOUS BUSINESS: vw PUBLIC HEARING CASE NO: BZA PETITIONER: LOCATION: 10-25 - Council District #4 BRIAN ELLISON 417761 MACK AVE, between Marseilles and University Plin a B4 Zone (General Business District). LEGAL DESCRIPTION OF PROPERTY: _N MACK ALL THAT PT OF 40 DESC AS BEG AT PROPOSAL: INTSEC OF WLY LINE MACK AVE 120 FT WD WITH SWLY LINE MARSEILLES AVE 75 FT WD TH S 160 24M W 181.10 FT ALG WLY LINE MACK AVE TH N 28D 58M 10S W 295 FT THN 16D 24M E 182.23 FT TH S 28D 48M E 295.86 FT ALG SWLY LINE MARSEILLES. AVE TO POBRIVARD PARK SUB L20 P57 PLATS, WC R 21/836 481.10 IRREG Brian R. Ellison/representing Hilltop MHP, LLC request to modify BZA Decision 14-24 which stated a Condition “K” that no ingress or egress to or from Marseilles is permitted, The subject site is within a B4 Zone (General Business District). The Board shall be authorized to hear dimensional variance requests for matters that are beyond the scope of BSEED's 10% administrative adjustments for a variance of the minimum setbacks; per letter sent to BZA requesting “a minor modification to a grant condition for BZA 14-24 condition K; the entrance and exits MUST ONLY be on Mack Ave. NO VEHICULAR: access to Marselles is permitted.” Sections 60-4-131 (6)- Permitted Dimensional variances and 50-4-121 Approval Criteria AP9:45 am. vu. ‘CASE NO: BZA PETTIONER: LocaTion: MAY 12, 2025 61-18 - Council District #2 MICHAEL EVANS & DIANN C. HARRIS 17610 JAMES COUZENS, between Thatcher and Santa Ciara in a B2 zone (Local Business and Residential District). LEGAL DESCRIPTION OF PROPERTY: _N-E JAMES COUZENS DR 1204 THRU 1201 EXC PROPOSAL: JAMES COUZENS HWY AS WD BLACKSTONE PARK SUB NO 1 L48 P92 PLATS, WC R 22/288 80 X 51 Michael Evans requests Hardship Relief TO establish a 4,160 square foot Rental Hall not allowed in B2 Zone (Local Business and Residential District). A public hearing at the Board of Zoning Appeals shall be required; Any applicant for development may file a hardship relief petition with the Buildings, Safety Engineering, and Environmental Department which seeks relief from any regulations in this chapter on the basis that the denial of the application has deprived the applicant of all reasonable use of such applicant's property. A hardship shall be defined as a denial of all reasonable economic use of the property. Upon finding that the denial of the application has resulted in a denial of all reasonable ‘economic use of the property, the City may provide the petitioner with relief from applicable zoning regulations. Sections 50-4-151 - Deprivation of use of property, 50-4- 153 - Denial of all reasonable economic use standards, 50-4-194 - Application of the “all reasonable economic use" standard, 50-4-195 - Burden of proof, 50-4-196 - Findings of the Board of Zoning Appeals and 60-4-197 - Additional forms of relief. AP Public Comment / Now Business Next Hearing Dato: May 19, 2025 ADVISEMENTS / OLD BUSINESS (MEETING ADJOURNEDEXHIBIT “G”STATE OF MICHIGAN IN THE 3RD JUDICIAL CIRCUIT COURT FOR THE COUNTY OF WAYNE VDG DETROIT, LLC, a Michigan limited liability company, Plaintiff and Counter-Defendant, ‘APOSTOLIC RENOVATION MINISTRIES INTERNATIONAL II, a Michigan non-profit corporation, AMERICA'S CHRISTIAN CREDIT UNION, a state-chartered credit union, Defendants APOSTOLIC RENOVATION MINISTRIES INTERNATIONAL i, a Michigan non-profit Corporation, Counter-Plaintiff CIVIL ACTION NO. 23-013822-CH HONORABLE BRIAN R. SULLIVAN Lawrence P. Swistak (P24892) Counsel for Plaintiff and Counter-Defendant 950 S Old Woodward Ave, Suite 220 Birmingham, Ml 48009 248-231-2925 iswistak@swistaklevine.com ‘Aaron Cox (P69346) Law Offices of Aaron D. Cox, PLLC Counsel for Apostolic Renovation Ministries int. 23820 Eureka Road Taylor, Michigan 48180 734-287-3644 aaron@aaroncoxlaw.com Naseem S. Ramin (73513) Dykema Gossett, PLLC Counsel for America’s Christian Credit Union 4400 Renaissance Center, 37th Floor Detroit, Michigan 48243 313-568-5326 NRamin@dykema.com CONSENT ORDER QUIETING TITLE TO REAL PROPERTY Ata session of sald Court held jp she Géypaf Detroit, Wayne County, Michigan on. PRESENT: HON. Circuit Court udge‘This matter having come before this Court upon the stipulation of the parties, by their respective counsel, to the entry of this Order to resolve all matters in dispute in this action, and this Court having reviewed the records and the files herein, NOW, THEREFORE, IT IS HEREBY ORDERED AS FOLLOWS: FINDINGS OF FACT ‘This Order is based upon the following factual findings: 1 Plaintiff and Counter-Defendant, VOG DETROIT, LLC ("VDG"), Is the fee owner of real property commonly known as 17761 Mack, Detroit, Michigan (the “VDG Property”), which is more particularly described as: 2. Part of Lot 40 of Piat of Addition to the Rivard Park Subdivision of Private Nos. 299 and 458, in the Townships of Grosse Pointe and Gratiot, County of Wayne, State of Michigan, according to the plat thereof as recorded in Liber 20 on Page 57 of Plats, Wayne County Records, and being more particularly described as beginning at a concrete monument at the intersection of the Westerly line of Mack Avenue as widened with the Southwesterly lina of Marseilles avenue, 75 feet wide, and running thence South 16 degrees 24 minutes 00 seconds West (along Westerly line of Mack Avenue as widened) 181.10 feet; thence North 28 degrees 58 minutes 10 seconds West (along the lot line common to Lots 40 and 41) 295.00 feet; thence North 16 degrees 24 minutes OO seconds East 182.23 feet; thence South 28 degrees 48 minutes 00 seconds East (along the Southwesterty line of Marseilles Avenue, 75 feet wide) 295,88 feet to the place of beginning; said premises being situated at the Northwest corner of Marseilles and Mack Avenues. Defendant and Counter-Plaintiff, APOSTOLIC RENOVATION MINISTRIES INTERNATIONAL I! (“Apostolic”), is the fee owner of real property commonly known as 4351 and 4281 Marsellles Street, Detroit, Michigan 48224 (the “Apostolic Property") and more particularly described as: Part of Lot 40, Addition to the Rivard Park Subdivision, according to the plat thereof, as recorded in Liber 20 of Plats, Page 57, Wayne County Records and more particularly descrined as follows: Beginning at the Northwest corner of Mack Avenue (120 feet wide) and Marseilles Avenue; thence North 28 degrees 48 minutes West along the North fine of Marseilles Avenue, a distance of 295.86 feet to the place of beginning of the parcel to be described; thence South 16 degrees 24 minutes West 182.23 to the West line of Lot 40; thence North 28 degrees 58 minutes 10 seconds West along the West line of said Lot 40, which is also the East line of Weinhart Garden Court Subdivision recorded in Liber 71 of Piats, Page 87, Wayne County Records, a distance of 929.45 fect to 2 point on the South line of Munich Avenue; thence North 60 degrees 53 minutes 40 seconds East along the South line of Munich Avenue, a distance of 132.12 feet to a point on the West line of 2Marseilles Avenue, thence South 28 degrees 48 minutes East along the West line of Marseilles Avenue, a distance of 801.69 feet to the place of beginning. 3. Defendant, America’s Christian Credit Union (“ACCU”), is vested with a first-priority mortgagee interest in the Apostolic Property pursuant to certain mortgage dated February 22, 2022, and recorded on March 8, 2021, fn Liber 56493, Page 771, Wayne County Records (the “ACCU Mortgage”). ‘The ACCU Mortgage is a first-priority encumbrance upon the Apostoli¢ Property. ‘The VDG Property and the Apostolic Property are contiguous to each other. More than fifteen (15) years ago a fence was erected between the VOG Property and the Apostolic Property (the "Fence”); however, the fence was not erected along the platted property line between the properties. 6. The boundary line as demarcated by the Fence has been accepted by VDG and Apostolic intitle as the boundary line between the VDG Property and the Apostolic Property. 7. By virtue of the location of the Fence, VDG and its predecessors in title have exclusively occupied and used for its benefit portion of the Apostolic Property (the “VDG Disputed Parcel’) depicted in the survey attached as Exhibit A (the “Survey” as the dotted triangular parcel and described as: ALL THAT PART OF LOT 40 DESCRIBED AS BEGINNING AT A POINT DISTANT NORTH 28 DEGREES 48 MINUTES 00 SECONDS WEST 227.08 FEET AND SOUTH 58 DEGREES 08 MINUTES 46 SECONDS 00 SECONDS WEST 73.30 FEET FROM THE INTERSECTION OF THE WESTERLY LINE OF MACK AVENUE 120 FEET WIDE; THENCE SOUTH 16 DEGREES 24 MINUTES 00 SECONDS WEST 79,17 FEET; THENCE NORTH 28 DEGREES 58 MINUTES 10 ‘SECONDS WEST 52.93 FEET; THENCE NORTH 58 DEGREES 17 MINUTES 59 SECONDS EAST 56.11 FEET TO THE POINT OF BEGINNING, RIVARD PARK SUBDIVISION LIBER 20 PAGE 57 PLATS, WAYNE COUNTY RECORDS. 17. 8. By virtue of the location of the Fence, Apostolic and its predecessors intitle have exclusively ‘occupied and used for its benefit a portion of the VOG Property (the “Apostolic Disputed Parcel’) depicted in the Survey as the cross-hatched triangular parcel and described as: ALLTHAT PART OF LOT 40 DESCRIBED AS BEGINNING AT A POINT IN SOUTHWESTERLY LINE (OF MARSEILLES AVENUE 75 FEET WIDE DISTANT NORTH 28 DEGREES 48 MINUTES 00 SECONDS WEST 227.08 FEET FROM THE INTERSECTION OF THE WESTERLY LINE OF MACK AVENUE 120 FEET WIDE; THENCE SOUTH 58 DEGREES 08 MINUTES 46 SECONDS WEST 73.30 3FEET; THENCE NORTH 16 DEGREES 24 MINUTES 00 SECONDS EAST 103.16 FEET; THENCE SOUTH 28 DEGREES 48 MINUTES 00 SECONDS EAST 68.78 FEET TO THE POINT OF BEGINNING, RIVARD PARK SUBDIVISION LIBER 20 PAGE 57 PLATS, WAYNE COUNTY RECORDS. 9. The location of the Fence has been accepted for greater than fifteen years by VOG and Apostolic, and their respective predecessors in title, as the true boundary line separating the Apostolic Property and the VOG Property. NOW, THEREFORE, IT IS HEREBY ORDERED that the fee interest of VDG in the Apostolic Disputed Parcel is hereby forever extinguished and fee simple title to this parcel Is vested absolutely in Apostolic. {TIS FURTHER ORDERED that the fee interest of Apostolic in the VDG Disputed Parcel is hereby forever extinguished and fee simple title to this parcel is vested absolutely in VOG. {71S FURTHER ORDERED that the Fence in its present location establishes the boundary line between the Apostolic Property and the VG Property as depicted in the survey attached hereto. (TIS FURTHER ORDERED that the ACCU Mortgage, to the extent it encumbers the VDG Disputed Parcel, is hereby extinguished but otherwise shall remain in full force and effect. The ACCU Mortgage is hereby revised so that in addition to encumbering the Apostolic Property, sans the VOG Disputed Parcei, italso fully encumbers the Apostolic Disputed Parcel from and as of the date of its original recording. IT1S FURTHER ORDERED that VDG and Apostolic shall cooperate with each other in obtaining the requisite lot split from the City of Detroit, the costs of which shall be borne equally by VDG and Apostolic. IT IS FURTHER ORDERED that the parties shall cooperate with each other and execute such instruments a5 necessary to fully effectuate this Order. IT1S FURTHER ORDERED that VOG shall present this Consent Order to the Wayne County Register of Deeds far recording, and the Order shall be accepted for recording and entered in the public land records for Wayne County, Michigan. The recording costs shall be borne solely by VOG.(TIS FURTHER ORDERED that this Order is entered without costs or attorney fees awarded for or against any party to this action. ‘THIS ORDER IS A FINAL ORDER THAT RESOLVES ALL REMAINING CLAIMS AND CLOSES THE CASE, ITISSQORDERED. Gireuit Court Judge APPROVED FOR ENTRY: Peale /s/lawrence P. Swistak (P24892) Attomey for VG Detroit, UC ‘Aaron Cox (P6346) Law Offices of Aaron D. Cox, PLLC Attorney for Apostolic Renovation Ministries I a : iAddeern Q. _ uh Pernnaddce ne ‘Nasseem S. Ramin (73513) Dykema Gossett, PLLC Attorney for America’s Christian Credit Unionin ue = A atau in nn i |2t-tatseovean| even’ sete} eau asa Hi na 2 ae 4 eyEXHIBIT “H”‘9 CHICK-FIL-A 76t MACK AVENUE, DETROIT, Mi 48226-1467 MACK AVE gEXHIBIT “I”