Posted by: Patricia Salkin | December 8, 2008

Sixth Circuit Court of Appeals Holds City Violated Due Process in Effort to Eliminate Nonconforming Uses

A revised zoning ordinance enacted by the City in 1983 rendered many properties noncompliant.  The ordinance grandfathered these nonconforming uses calling them viable-nonconforming-use, and provided that the status would be lost if the property owner discontinued the use for six consecutive months. In an effort to clean-up the City, the City placed placards on viable-nonconforming properties it deemed to have been vacant for six consecutive months, prohibiting landowners from using the property without a variance. 


The Plaintiffs alleged that the City’s actions amounted to a deprivation of a property interest without due process of law. The District Court agreed, concluding that the Plaintiffs “had no opportunity to contest the loss of their property’s [viable-nonconforming-use] status before the zoning board” and that there was a lack of process to dispute the City’s six-month vacancy determinations.


In upholding the District Court’s determination, the Circuit Court of Appeals held that Michigan law protects viable-nonconforming-use status as a property interest because the use lawfully existed before the effective date of the zoning regulations. Agreeing with the District Court that the placement of placards on the properties in question constituted sufficient notice, the Circuit Court turned to the question of opportunity to be heard. The Court concluded that the only opportunity the Plaintiffs’ had was to seek a variance request from the zoning board, “which offered no means to oppose the City’s determination of vacancy or its decision to rescind the properties’ viable-nonconforming-use status.”  Therefore, the Court upheld the District Court’s finding that the City’s actions violated procedural due process.


Mator v. City of Ecorse, 2008 WL (C.A. 6 (Mich.) 11/18/2008).


The opinion can be accessed at:


  1. Although I understand the reasoning behind municipalities’ desire to eliminate non-conforming uses, I typically side with the property owners in cases such as this. I completely agree with the Court’s decision in this case. Without having yet read the entire opinion, I’m curious as to what method the City used in determining vacancy. Regardless of the method of its determination, I agree with the Court’s finding that placing a placard on property is a deprivation of a property interest without due process. The property owners should have been given the opportunity to contest the vacancy determination before being forced to obtain a variance in order for the use to continue legally.

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