When does a community go too far in enforcing its zoning ordinances? A recent Michigan Court of Appeals decision answered this question in a recent case where a Township sought a court Order to remove three buildings built without zoning permits and not only lost, but, was required to pay the attorney fees of the property owner defending the case.
In Claybanks Township v. Feorene, the Defendants own 40 acres of agriculturally zoned land in a rural township and built a greenhouse and a gazebo on their property without first securing zoning permits from the Township. Once being notified that zoning permits were needed, the property owners contacted the Township and applied for them. The Township, however, would not give them the zoning permits unless they paid fine equaling the daily fine for building structure without first obtaining a permit. The property owners refused to pay the fine then built a third building on the property without a zoning permit. The Township responded by suing the property owners for nuisance per se and sought an order from the Court to remove the three buildings.
The trial Court confirmed that the failure to secure zoning permits prior to building was a nuisance per se. However, the Court deemed it inappropriate to remove the buildings. Rather it ordered the property owners to secure zoning permits. In addition, the trial Court found that the Township acted in bad faith by conditioning the payment of fines on securing the zoning permits and ordered the Township to pay the attorney fees incurred by the property owners in defending the case. The rationale of the trial Court was that the Township did not have the authority to condition the payment of a fine on securing a permit. The Township appealed seeking an order from the Court to remove the buildings and the finding of bad faith and requirement to pay the attorney fees of the property owners.
The Court of Appeals affirmed the trial Court’s ruling and concluded that the action of the Township was in “bad faith.” The local zoning ordinance provided for a fine only after a Court determined that a nuisance per se occurred and there had been no such finding at the time when the Township sought the payment of the fine. Further, the Court could only impose the fine after a finding that a property owner violated the zoning ordinance. With respect to the attorney fee question, the Court of Appeals found that the record clearly indicated that the Township brought the action with the “primary purpose to harass and injure” the property owners. Thus, the trial Court had the authority to award attorney fees pursuant to MCL 600.2591(3)(a)(i).
In most cases, zoning administrators and elected officials work hard in balancing the zoning requirements of a community and the property rights of owners. However, when a community takes zoning or building code enforcement actions in a vindictive and personal manner, as was done in this case, property owners may seek relief from the Court. The attorneys at Dalton & Tomich PLC have experience in defending the rights of property owners who are being subjected to zoning enforcement actions throughout Michigan. Please contact one of our professionals to discuss your case.