In Michigan, it is very difficult for property owners to acquire nonconforming use status in their land if the use has not been fully operational prior to new or changed zoning. This month, the Michigan Appellate Court remanded a case involving a special use permit to construct a boat launch on a lot owned by a homeowners association to determine whether the lot is entitled to nonconforming use status.
The lot at issue was conveyed to the Goodwood Plat Owners, Inc. (GPO) in 1950 as part of a riverfront subdivision development. In 1991, the owners of the lots in the Goodwood Plat, upon discovering that the GPO has lapsed as a corporation for failure to file annual reports, formed the current GPO by incorporation in 1992, filing a successful suit to confirm ownership of the deeded lot for the boat launch. A quitclaim deed was executed to the GPO in 1996 subject to certain flowage rights and restrictions in the zoning ordinance. The lot is only 75 feet wide, but the zoning regulation requires a minimum of 100 feet of lake frontage. Following a public hearing, the Township granted GPO a special use permit, determining that the 100 foot minimum did not apply because the GPO was entitled to nonconforming use status, going back to the 1950 dedication. The Township, however, made no findings of fact as to how the lot in question had been used in the past. Neighbors appealed, alleging among other things, that the determination that the lot was entitled to nonconforming use status was without basis in law and not based upon any material evidence claiming that there has been no tangible change in the land nor worked of a substantial character performed on the property.
In reviewing the case law in Michigan with respect to nonconforming uses, the Court noted that to acquire nonconforming use status, “there must be work of a ‘substantial character’ done by way of preparation for an actual use of the premises.” The Court noted that in previous Michigan cases, the following activities were not enough to entitle owners to nonconforming use status: obtaining a building permit, ordering plans, surveying property, tearing down a barn and moving a house (City of Lansing v. Dawley, 247 Mich. 394); construction of a road, surveying and subdividing a plat, grading and excavating the sites, and installing 11 mobile homes (Gackler Land Co., Inc. v. Yankee Springs Twp., 427 Mich. 562); development of a site plan, the clearing of trees and the construction of a commercial well and well-house (Heath Twp. V. Sall, 442 Mich. 434); and obtaining financing, purchasing insurance, application for permits, designing of barn and manure pit layouts, obtaining quotes for the construction and signed contracts with suppliers, grading the site and construction of the barn and manure sewage system (Belvidere Twp. V. Heinze, 241 Mich. App. 324).
Because there were no findings of fact in the record below as to what, if any, work of a substantial nature had been done to the lot, the Court remanded the matter. However, based upon the long list of activities deemed not be substantial by Michigan courts, it appears as though it will be very difficult for the property owners to establish nonconforming use status in this case, and seeking a variance may be an alternative course of action to pursue.
Vanfarowe v. Cascade Charter Township, 2007 WL 3309920 (Mich. App. 11/8/2007).
The opinion can be accessed at: courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20071108_C264189_42_264189C.OPN.PDF
