It happens all too often. You look outside and see that your neighbor has constructed something on or decided to use his or her property in a manner that violates a local zoning ordinance. This could involve violations of setback requirements, the failure to obtain necessary permits, a use inconsistent with the permitted uses in the zoning district, or some kind of structure – whether it be a dock, shed, or fence – that otherwise violates the zoning ordinance, and you find yourself wondering if there is anything you can do to stop it.
In an earlier blog (https://www.daltontomich.com/the-three-types-of-nuisance-claims-under-michigan-law/) I explained the three forms of nuisance claims under Michigan law. Of those is what’s known as a nuisance per se, which is defined as an act, occupation, or structure that is a nuisance at all times and under any circumstances, regardless of location or surroundings. Despite its broad definition, a claim of nuisance per se has been almost exclusively limited to cases where there is a violation of state or local law. Most often it’s a violation of local zoning ordinances, which the Michigan legislature has expressly recognized as a nuisance per se (see MCL 125.3407).
From a defendants’ perspective, a nuisance per se can be analogized to a speeding ticket. The cops don’t care why you were speeding, nor whether you intended to do so; the only thing that matters is that you were in fact speeding. This is what’s known as strict liability, and its exactly how a nuisance per se is applied. Once a defendant is deemed to be using his or her property in a manner that violates a zoning ordinance, he or she will be liable for a nuisance per se. The only question now is who can file the claim against that defendant.
The answer to that inquiry can be found in the doctrine of standing. While the doctrine has received a lot of attention and analysis in the courts, standing can be boiled down to three main requirements: (1) a real interest in the subject of the case (like an owner of the property under dispute, a party to a contract breached, or a victim of fraud, just to name a few); (2) an actual legal claim; and (3) an injury that is distinct or different from what the citizenry at large could experience. This third element is of particular importance in a nuisance per se action, and Michigan courts have used the term “special damages” to describe what must be shown.
As a practical matter, a showing of special damages is not difficult for the proper plaintiff, and that is precisely the point. The idea is to separate members of the general public who are not otherwise affected by the zoning violation from those who are affected. So, if it’s a neighbor who is violating the zoning ordinance, special damages will most likely arise out of the intent of the ordinance provision itself. For example, if a structure is built by a neighbor in violation of the zoning code’s setback requirements, special damages are typically established by the mere fact that the setbacks applicable to the neighbor’s property were intended to protect abutting properties.
The special damages standard to establish standing in a nuisance per se action is not to be confused with the standard of an “aggrieved party,” which applies to an appeal to the circuit court from a decision of a zoning board of appeals. In a recent case before the Michigan Court of Appeals, the Court explained that an aggrieved party must show damages beyond “[i]ncidental inconveniences such as increased traffic congestion, general aesthetic and economic losses, population increases, or common environmental changes…there must be a unique harm, dissimilar from the effect that other similarly situated property owners may experience.” Ansell v. Delta Cnty. Planning Comm’n, No. 345993, 2020 Mich. App. LEXIS 3688, at *8-9 (Ct. App. June 4, 2020). If this sounds a lot like the “special damages” standards, its because it is. The difference, however, is the perspective from which the court determines the existence of those damages. For a nuisance per se action, the determination of standing will be made by looking at the impact from the use of the subject property. For an appeal from a zoning decision, on the other hand, the court is looking at the impact of the decision from the zoning board. Ultimately, the ability of a property owner to pursue an action for the abatement of a use of property that violates a local zoning code is well established, and despite common belief, a plaintiff need not first seek enforcement through his or her municipality so long as he or she can establish the elements of standing outlined above.
The attorneys at Dalton & Tomich have successfully handled a variety of nuisance per se matters. Whether you are a potential plaintiff or defendant, please do not hesitate to contact us. We would be happy to speak to you.
