Has this happened to you? You built a structure on your property (a shed, barn, etc.) which you have used for many years. Or maybe you are a small business owner attempting to turn a profit out of your brick-and-mortar store. One day, however, a municipal official visits your home or business and begins to issue citations for non-compliance with the zoning code. Perhaps these tickets are thousands of dollars. You ask yourself—can they really do this to me?
While it is true that municipalities in Michigan are given considerable discretion to create and enforce zoning restrictions over land use,[1] their power to do so does not come without certain limitations. These limitations include the U.S. and Michigan Constitutions, the Michigan Zoning and Enabling Act, MCL § 125.3101 et seq., and the text of the local zoning ordinances themselves. If enforcement of a zoning ordinance falls outside the bounds created by these laws, then a party challenging zoning enforcement will likely prevail and will even be entitled to attorney’s fees under certain circumstances. MCL § 600.2591.
Municipal officials will be acting outside of their authority if they are enforcing the code against you in a retaliatory or vindictive manner. if you suspect that a zoning code is being enforced against your land use because of individualized animus by the municipality towards you, there may be a basis to argue, among other things, that a violation of the Equal Protection clause of the 14th Amendment has occurred. This clause states that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. This “equal protection” may be violated when a municipality singles out a particular person for enforcement. See Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000).
However, the burden will be on the plaintiff bringing such a claim to show either 1) that the government lacked no conceivable rational grounds for its policy of enforcement, or 2) that the government conduct in question was motivated by “animus or ill-will.” Warren v. City of Athens, Ohio, 411 F.3d 697, 711 (6th Cir. 2005). This “animus or ill-will” by a municipality must be more than simply not inviting a landowner to a city council meeting where an ordinance affecting that landowners land was discussed. Loesel v. City of Frankenmuth, 692 F.3d 452, 466 (6th Cir. 2012). Nor can the animus or ill-will be simply opposition to the land-use in question—there must be some evidence hostility towards the land-owner by the municipality. Id.
While courts have had a difficult time determining what exactly rises to the level of “animus or ill-will”, it is important to recognize that this argument is available to plaintiff’s challenging zoning decisions. Even so, there are some signs that this theory is gaining renewed attention by courts and legal scholars within an equal protection context.[2]
Additionally, where zoning enforcement is considered by the courts to be “harassment,” attorney’s fees can also be provided to the prevailing party. MCL § 600.2591. In one case, a Michigan court determined that the imposition of $3100 fines against a landowner for the presence of three structures that did not conform with a zoning ordinance, when the fines were not authorized under the statute in question, constituted a form of “harassment” under Michigan law. See Claybanks Twp. v. Feorene, No. 322043, 2015 WL 8277773 (Mich. Ct. App. Dec. 8, 2015).
The land-use attorneys at Dalton & Tomich, PLC are well aware the best possible path for our clients to resolving zoning violations may be outside of the litigation context. However, when litigation is unavoidable it is important to have attorneys who are aware protections afforded by the Constitution. If you are concerned with the enforcement of zoning codes against your property, we would be happy to take your call to discuss the best options available to you.
[1] For instance, the failure of a municipality to enforce its zoning ordinance against a property owner for ten years was considered by a court to not prejudice that land owner. Lyon Charter Twp. v. Petty, 317 Mich. App. 482, 496, 896 N.W.2d 477, 485 (2016). The court generally held that municipalities are given wide discretion as to the time the decide to enforce their code against non-conforming uses.
[2] See generally, William D. Araiza, Animus and its Discontents, 71 Fla. L. Rev. 155 (2019).
