Dingeman Advertising, Inc. v. Algoma Township

Michigan Supreme Court

Dingeman Advertising, Inc. v. Algoma Township

223 N.W.2d 689, 393 Mich. 89, 80 A.L.R. 3d 613, 1974 Mich. LEXIS 215

CourtMichigan Supreme Court

DecidedNovember 21, 1974

DocketDocket No. 54,834

StatusPublished

Cited by25 cases

This text of 223 N.W.2d 689 (Dingeman Advertising, Inc. v. Algoma Township) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dingeman Advertising, Inc. v. Algoma Township, 223 N.W.2d 689, 393 Mich. 89, 80 A.L.R. 3d 613, 1974 Mich. LEXIS 215 (Mich. 1974).

Pincite

Opinion

T. M. Kavanagh, C. J.

(separate opinion). This case is before us on leave granted from the decision of the Court of Appeals, 46 Mich App 71; 207 NW2d 488 (1973) reversing an order of the trial court which permanently enjoined the defendant township from interfering with appellant’s vested billboard use. As we find that such a vested right by way of an existing nonconforming use did exist, we reverse the decision of the Court of Appeals.

This case comes before us upon stipulated facts which are crucial to its determination. The follow[95]*95ing calendar of events adequately sets forth the factual situation:

April, 1970 Appellant discussed with the Algoma Township Supervisor the availability of billboard sites. Appellant determined that billboards were permitted at the location in question at that time.

March 26, 1970 & April 16, 1970 Publication by Algoma Township Planning Commission of new zoning ordinance and notice of public hearing on its adoption.

May 1970 Appellant entered into a land contract. (Total cost $900; attorneys fees: $60; incidental expenses: $400.)

May 15, 1970 Building permit issued to appellant to expire May 15, 1971.

May 1970-March 1971 Appellant negotiates advertising contract for the property. (Expenses: $1,-500.)

July 1970 Appellant caused sign location to be staked.

Nov. 23, 1970-Jan. 19, 1971 Consumers Power installed a 40-foot pole and transformer upon the property.

April 1, 1971 Appellant signed an advertising contract for the billboard in question.

April 1, 1971-April 28, 1971 Appellant’s agents engaged in shop work in Traverse City constructing an outline of the billboard. (Total cost: $2,645.50.)

April 6, 1971 The new zoning ordinance officially adopted by Algoma Township effective immediately not permitting billboards.

[96]*96April 15, 1971 Publication of the new ordinance by Algoma Township Board.

April 28, 1971 Appellant’s construction crew began erecting billboard structure. The frame of said structure was completed when the building inspector caused construction to cease with a stop order.

The parties also stipulate that "[sjince the steel supports of the outdoor advertising panel are embedded in concrete, the only feasible way the sign can be removed is to cut through the steel supports with a torch”. See Exhibit F attached to this opinion.

As noted by the parties in the Court of Appeals, the leading Michigan case on nonconforming uses is City of Lansing v Dawley, 247 Mich 394; 225 NW 500 (1929). In Franchise Realty Interstate Corp v Detroit, 368 Mich 276; 118 NW2d 258 (1962), the Court at page 279 stated:

"The City of Lansing Case holds that, even after issuance of permit, construction in pursuance of such permit is enjoinable when, prior to construction or fairly indicative commencement of construction, an ordinance is enacted which validity bars what was lawfully authorized by the permit.”

As to .the type of construction which must be undertaken to acquire a vested nonconforming use, the Court in Bloomfield Twp v Beardslee, 349 Mich 296; 84 NW2d 537 (1957) stated, p 307:

"To establish a nonconforming use there must be work of a 'substantial character’ done by way of preparation for an actual use of the premises. Mere 'preliminary’ operations, e.g., ordering of plans, surveying the land, removal of old buildings, are not sufficient. * * * Nor do occasional operations upon the land suffice to indicate its appropriation to a particular use.”

[97]*97Both parties to this case, and the Court of Appeals, have analyzed the factual situation present herein in such a manner as to determine whether or not the work which the appellant had performed in connection with this property met the tests set forth in Lansing and Beardslee, supra, as of the effective date of the new zoning ordinance, April 6, 1971. All parties to this lawsuit, and both lower courts, have apparently taken the unstated position that the actions of the appellant in erecting the frame of the billboard structure cannot be taken into consideration in this suit because the actions were undertaken 22 days after the effective date of the new zoning ordinance. We do not agree.

Crucial to the Lansing holding was the statement of the Court, supra, pp 396-397:

"It thus appears that the first work done upon the new building was three months after the ordinance went into effect and after the defendant had been notiñed that his permit had been revoked. If he had constructed the building or partially constructed it, if the work he did after the enactment of the ordinance had been done before, there would be no question as to his vested property rights.” (Emphasis supplied.)

Thus, as noted above, crucial to the Lansing decision was the fact that construction had taken place after the building permit issued by the city had been revoked and notice given plaintiff. Franchise Realty, supra, involved a mandamus action to order the city to issue the permit. This Court held that no nonconforming use was established in that case. However, in De Mull v City of Lowell, 368 Mich 242; 118 NW2d 232 (1962) wherein the parties had obtained a prior permit under which they had expended considerable sums in reliance thereon, a nonconforming use was found to exist.

[98]*98In Willingham v City of Dearborn, 359 Mich 7; 101 NW2d 294 (1960), Justice Carr properly pointed out in his dissent that a crucial fact considered by the Court in cases of this nature is whether or not the city has ever issued a lawful permit to begin with, upon which the holder of the permit has substantially relied to his detriment.

On page 16 in Willingham, supra, Justice Carr aptly points out the facts crucial to his view of that case. He states:

"No permit had been granted to plaintiff for the construction of his service garage. The application therefor gave him no vested rights in the property with reference to the construction of said building, nor was the situation otherwise at the time the petition for writ of mandamus was filed.”

Although this Court disagreed with Justice Carr as to his view of the procedural issue involved in Willingham, supra, this Court fully supports his analysis of the Dawley line of cases. Once a city or township issues a valid permit to an applicant, that applicant has every reason and right to rely thereon in his business dealings. Permits are not issued by local authorities when the contemplated use for which the permit is issued conflicts with a local zoning ordinance. Should these ordinances change, the average holder of such a permit, even if he had notice of the change of ordinance, would not necessarily presume that the new ordinance applied to him. After all, he has within his possession an official document of the local community authorizing him to proceed with his contemplated project.

While it is true that the issuance of a permit itself will not give vested rights to a nonconforming use to the holder thereof, the possession [99]*99thereof, and substantial reliance thereon, will give such rights.

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