When a landowner uses his or her property in a way that becomes contrary to a newly adopted or amended zoning ordinance, the ability of that landowner to continue the prior use is frequently questioned and challenged. From a legal standpoint, any use consistent with local zoning codes will, in general, be deemed lawful for purposes of zoning compliance. However, there are often occasions where the zoning code is modified and the particular use you have enjoyed is no longer permitted. When that happens, Michigan law recognizes what’s known as a lawful nonconforming use, which is the term used to describe the right of a property owner to continue using the property in the same manner it has been used, despite recent changes to local zoning provisions. The right to a nonconforming use is established by law in the Michigan Zoning Enabling Act, codified at MCL 125.3208, which provides, “[i]f the use of a dwelling, building, or structure or of the land is lawful at the time of enactment of a zoning ordinance or an amendment to a zoning ordinance, then that use may be continued although the use does not conform to the zoning ordinance or amendment.”
In addition to statute, a nonconforming use is protected by well-established common law. For example, the court in Edw C Levy Co v Marine City Zoning Board of Appeals, explained that “[a]n existing nonconforming use is a vested right in the use of particular property that does not conform to zoning restrictions, but is protected because it lawfully existed before the zoning regulation’s effective date.” 293 Mich App 333, 341-342 (2011). The purpose of the nonconforming use doctrine is simple; to protect property owners from the burden of fluctuating zoning codes. Understandably, a property owner should not be punished for continuing a use of property that has only recently been made violative of a zoning ordinance due to a change in the law. In other words, “[p]ermitting the continuation of a nonconforming use is designed to avoid the imposition of hardship upon the owner of property.” Gerrish Twp v Esber, 201 Mich App 532, 533; 506 NW2d 588 (1993).
The vested right to a nonconforming use is also something that a local government cannot take away from property owners. Specifically, the Michigan Supreme Court in Dusdal v Warren, explained that “[a] prior nonconforming use is a vested right to continue the lawful use of real estate in the manner it was used prior to the adoption of a zoning ordinance. Though the ordinance be reasonable, it cannot operate to oust the property owner of his vested right.” 387 Mich 354, 359 (1972). This means that a municipality is barred by law from enacting any ordinance that prohibits prior nonconforming uses.
However, to establish the right to a nonconforming use, a property owner must satisfy certain standards. For instance, to establish a nonconforming use on property that has not been fully developed, “there must be work of a substantial character done by way of preparation for an actual use of the premises.” Gackler Land Co v Yankee Springs Twp, 427 Mich 562, 574-75 (1986). In addition, the actual nonconforming use “must be apparent and manifested by a tangible change in the land, as opposed to intended or contemplated by the property owner.” Id. To that end, “preliminary operations such as ordering plans, surveying the land, and the removal of old buildings are insufficient to establish a nonconforming use.” Id. The ultimate test in each case hinges on whether there has been any tangible change in the land itself by excavation and construction.
Further limitations exist with respect to the nature of continuing the nonconforming use. In particular, Michigan law prohibits the extension or enlargement of nonconforming uses, and the courts have concluded that zoning regulations should be strictly construed with respect to expansion. Similarly, the law emphasizes that the continuation of a nonconforming use must be substantially of the same size and the same essential nature as the use existing at the time of passage of a valid zoning ordinance. As a result, a nonconforming use will be closely examined to ensure that it is continued in a consistent manner and form, without expansion or increase in the nonconformity.
Regardless of the situation, if you are facing a dispute involving a nonconforming use, the attorneys at Dalton & Tomich have the experience to help protect your rights. Call us today for a consultation.