Gackler Land Co. v. Yankee Springs Township

398 N.W.2d 393, 427 Mich. 562

• Court: Michigan Supreme Court
• Decided: December 30, 1986
• Docket: 75246, (Calendar No. 3)
• Status: Published

Opinions

Boyle, J.

This case involves the validity of a zoning ordinance in Yankee Springs Township, Barry County, Michigan, which excludes from the property of plaintiff, Gackler Land Company, Inc., the placement of "single-wide” mobile homes that do not comply with certain requirements.

Plaintiff presents the following questions for our consideration: (1) Whether the zoning ordinance is unconstitutional on its face or as applied to plaintiff’s plat, (2) whether plaintiff has established a vested nonconforming use as a single-wide mobile home plat, and (3) whether certain portions of the zoning act are preempted by federal and state law.

We hold that the zoning ordinance is neither unconstitutional on its face nor as applied to plaintiff. The requirements of the zoning ordinance are either reasonable standards designed to assure favorable comparison of mobile homes with site-built housing or constitute a reasonable exercise of police power for the protection of the public. Moreover, the zoning ordinance does not preclude other reasonable uses of the land. Plaintiff cannot establish a confiscation by simply showing a disparity in value between uses.

We further hold that by virtue of expenditures in the development of the land as a residential subdivision, plaintiff has not established a tangible change by way of preparation for the actual use of the property as a single-wide mobile home plat. The property, as developed, is suitable for site-built, double-wide, and single-wide mobile homes. Although approximately one-fourth of the back lots in the plat are occupied by single-wide mobile homes, an apparent use of the property as a single-wide mobile home plat has not been established when the remaining back lots could be used for site-built or mobile homes at the plaintiff’s option.

Finally, we hold that the federal and state laws do not preempt portions of the zoning ordinance. The zoning ordinance regulates the location and conditions of mobile home placement and therefore does not conflict with the construction and industry regulations set forth by the federal and state laws.

Accordingly, the decisions of the trial court and the Court of Appeals upholding the zoning ordinance are affirmed.

FACTS

The plaintiff platted approximately twenty acres of a 103-acre tract along the northwest shore of Payne Lake. This plat, "Gackler’s Payne Lake Plat,” was approved by the township and consists of fifty-four lots. The zoning in effect at that time permitted mobile, prefabricated, and site-built homes on the lots. After the plat was approved, restrictions were recorded excluding mobile homes from the twelve lots which bordered the lake. Through 1972, eleven single-wide mobile homes had moved onto the back lots in the plat.

In 1972, the defendant township enacted a zoning ordinance which restricted mobile homes to mobile home parks. Pursuant to this Court’s decision in Robinson Twp v Knoll, 410 Mich 293; 302 NW2d 146 (1981), the township amended its zoning ordinance to permit mobile homes meeting the definition of "dwelling” in any zoning classification where site-built or modular single family residences were allowed. "Dwelling” was defined in the zoning ordinance as follows:

1. It complies with the minimum square footage requirements [720 square feet].

2. It has a minimum width along any exterior side elevation of 24 feet and a minimum internal height of seven and one-half feet.

3. It is firmly attached to a solid foundation constructed on the site in accordance with the township building code, which shall be a fully enclosed basement or crawl space ....

4. It does not have exposed wheels, towing mechanisms, undercarriage or chassis.

5. The dwelling is connected to a public sewer and water supply or to such private facilities approved by the local health department.

6. The dwelling contains storage area(s) either in a basement located under said dwelling, in an attic area, in a closet area or in a separate fully enclosed structure on the site, . . . equal to not less than 15% of the interior living area of the dwelling.

7. The dwelling is aesthetically compatible in design and appearance to conventionally on-site constructed homes ....

8. The dwelling contains no additions of rooms or other areas which are not constructed with similar materials and are similar in appearance and with similar quality of workmanship as in the original structure ....

9. The dwelling complies with all pertinent building and fire codes . . . .[¹] [138 Mich App 1, 7-8; 359 NW2d 226 (1984).]_

The effect of this ordinance was to exclude single-wide mobile homes from placement on plaintiff’s lots unless the foregoing requirements were met. The plaintiff challenged this portion of the zoning ordinance as unconstitutional on its face and as applied to plaintiff, and because it was preempted in part by state and federal law. Plaintiff also averred that it had established a prior nonconforming use in the property as a single-wide mobile home plat. Following a bench trial, the trial court upheld the ordinance as to these requirements and rejected plaintiff’s claim that it had established a nonconforming use. The Court of Appeals affirmed the decision. We agree.

I. IS THE ZONING ORDINANCE CONSTITUTIONAL ON ITS FACE AND AS APPLIED TO PLAINTIFF?

Plaintiff contends that the township zoning ordinance is unconstitutional on its face because it operates to exclude all single-wide mobile homes from areas other than mobile-home parks. We disagree.

In Robinson Twp v Knoll, supra, 310, this Court held that "[t]he per se exclusion of mobile homes from all areas not designated as mobile-home parks has no reasonable basis under the police power, and is therefore unconstitutional.” We also held:

[A] municipality need not permit all mobile homes, regardless of size, appearance, quality of manufacture or manner of on-site installation, to be placed in all residential neighborhoods. A mobile home may be excluded if it fails to satisfy reasonable standards designed to assure favorable comparison of mobile homes with site-built housing which would be permitted on the site, and not merely because it is a mobile home. [Id.]

The requirements for a "dwelling” within the definition of the zoning ordinance are set forth in the facts stated above.

We initially note that these regulations do not treat mobile homes materially different than site-built homes. We further find that the requirements, as stated, are either reasonable standards designed to assure favorable comparison of mobile homes with site-built housing, or constitute a reasonable exercise of police power for the protection of the safety, health, morals, prosperity, comfort, convenience, and welfare of the public or a substantial part of the public. Robinson Twp, supra, 312.

Nor are we persuaded that the zoning ordinance is unconstitutional as applied to plaintiff. We believe the trial court properly summarized the plaintiff’s argument in this regard:

The thrust of plaintiffs argument is that because there are already existing on the land in question as nonconforming uses 11 mobile homes, any ordinance that prevents the placing of similar mobile homes on the remaining lots is unreasonable. The reasons for this conclusion are that (1) because mobile homes are situated on the plat in question that are nonconforming, aesthetics cannot be a proper concern of the township, at least in regard to the requirement that dwellings have an interior ceiling height of IV2 feet, and an external width of 24 feet, and (2) that because there is no indication that any of the existing mobile homes will be vacating, it is not reasonable for the township to continue to classify these homes as nonconforming uses, which must be replaced with conforming uses when their useful life is over, and to require conforming uses on the as yet unsold lots. . . .

Plaintiff [further] argues that (1) the ordinance restricts a reasonable use of the land (that being used as a site for placing mobile homes thereon) and (2) plaintiff cannot sell the remaining plots at the price he is asking for any use other than mobile home sites because no one will want to purchase land to build next to mobile homes.

The following principles of law are applicable to plaintiffs claim:

The plaintiff must show:

"[F]irst, that there is no reasonable governmental interest being advanced by the present zoning classification itself ... or

"[S]econdly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.” [Kirk v Tyrone Twp, 398 Mich 429, 434; 247 NW2d 848 (1976).]

There are four rules for applying these principles:

1. " '[T]he ordinance comes to us clothed with every presumption of validity.’ ”

2. " '[I]t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his property .... It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness.’ ”

3. "Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes to which it is reasonably adapted.”

4. " 'This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases.’ ” [Kirk, supra, 439-440. Citations omitted.]

We disagree with plaintiff that the existence of eleven single-wide homes in the plat renders the ordinance unreasonable to plaintiff. Notwithstanding the eleven mobile homes, the zoning ordinance will improve the aesthetics of the area, thereby advancing a reasonable government interest. Moreover, the state may properly provide for the limitation and eventual elimination of a nonconforming use in order to advance the goals of the zoning plan. Austin v Older, 283 Mich 667, 676; 278 NW 727 (1938).

We also conclude that plaintiff has not carried its burden of establishing that if the ordinance is enforced, any purpose to which the land is reasonably adapted is precluded. As the trial court found, "the ordinance did not deprive plaintiff of other uses of his land, since the evidence indicated that the vacant lots would sell for conventional or modular home occupancy if the asking price was realistic and if screening was provided for the existing mobile homes.” We further agree with the Court of Appeals that plaintiff cannot establish a confiscation by simply showing a disparity in value between uses. Brae Burn, Inc v Bloomfield Hills, 350 Mich 425; 86 NW2d 166 (1957); Kirk v Tyrone Twp, 398 Mich 429; 247 NW2d 848 (1976). Justice Smith pointed out in Brae Burn, Inc v Bloomfield Hills, supra, 433-434:

Disparity in values between residential and commercial uses will always exist. ... If such a showing serves to invalidate an ordinance the efforts of our people to determine their living conditions will be hopeless. To avoid "confiscation” in this sense (the obtaining of the highest dollar for one particular lot) will result in confiscation of far greater scope in property values in the municipality as a whole due to its inability to control its growth and development.

We stress that this is not a situation where the property is unsuitable for the uses allowed by the zoning ordinance and has little or no value if so restricted. Compare Fenner v Muskegon, 331 Mich 732; 50 NW2d 210 (1951). Therefore, the issue of confiscation is not properly before us. See Brae Burn, supra.

In summary, we find that plaintiff has not established that the zoning is unconstitutional either on its face or as applied to plaintiff.

II. HAS PLAINTIFF ESTABLISHED A NONCONFORMING USE IN THE PROPERTY AS A SINGLE-WIDE MOBILE HOME PLAT?

Plaintiff asserts that it has established a vested nonconforming use as a mobile home plat in advance of the existence of the zoning ordinance, by virtue of the following facts: (1) a road was constructed, (2) the plat was surveyed and monuments were erected, (3) grading and excavation work was completed, and (4) eleven mobile homes were installed. Plaintiff further argues that the plat must be viewed as a whole and that, when so viewed, the pattern of development of the plat as a mobile home plat was well-established prior to the enactment of the zoning ordinance. Even viewing the plat as a whole, we are not so persuaded.

A claim to a prior nonconforming use does not test the reasonableness of a zoning ordinance. "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.” Dusdal v City of Warren, 387 Mich 354, ; 196 NW2d 778 (1972). A zoning ordinance cannot operate to oust the property owner of his vested right even though the ordinance is reasonable. Id. "An ordinance requiring immediate cessation of a nonconforming use may be held to be unconstitutional because it brings about a deprivation of property rights out of proportion to the public benefit obtained . . . Austin v Older, supra, 676. However, an ordinance prohibiting the enlargement of a nonconforming use is not subject to the same challenge. Id. This more limiting restriction is within the police power of the state and has for its purpose the elimination of the inconsistency brought to bear by the nonconforming use in a zoning classification. Id.2

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.” Bloomfield Twp v Beardslee, 349 Mich 296, 307; 84 NW2d 537 (1957). The actual use which is nonconforming must be apparent and manifested by a tangible change in the land, as opposed to intended or contemplated by the property owner. In this regard, preliminary operations such as ordering plans, surveying the land, and the removal of old buildings are insufficient to establish a nonconforming use. Id.; Lansing v Dawley, 247 Mich 394, 397; 225 NW 500 (1929). The test in each case is not whether a little or a lot has been spent in reliance upon the past zoning classifications, but, rather, " 'whether there has been any tangible change in the land itself by excavation and construction.’ ” Id.

In the case at bar, the dissent would hold:

[T]he subdivision development should be viewed as a whole, as a structure only part of which had been completed, analogous to a building that is partially completed or to a nonconforming use that is established in a portion but not in all of a building before an amendment to a zoning ordinance rendering such structure or use nonconforming. It has been said that "the extension of the nonconforming use is permissible if the design of the building indicates that at the time of the passage of the zoning restriction it was intended that the building be dedicated in its entirety to such use.” [Post, p 587, quoting 8A McQuillin, Municipal Corporations (3d rev ed), § 5.208, p 118.]

We find this analogy inapposite. This is not a situation where construction of a project before completion is halted by the enactment of a zoning ordinance and to disallow completion of the project would work a clear injustice. Compare Eklund v Clackamas Co, 36 Or App 73, 82; 583 P2d 567 (1978). In this case, development of the plat is virtually complete save for sewer and water hookups on the back lots which have no bearing on whether the land will be used for "dwellings” under the ordinance or as a single-wide mobile home plat. Moreover, it is undisputed that the improvements to the property have made the lots as suitable for "dwellings” under the ordinance as they are for single-wide mobile homes. Further, on twelve of the lots, mobile homes are prohibited by covenant. Therefore, there is no concrete manifestation that development of the plat was dedicated in its entirety to the use as sites for single-wide mobile homes.

The dissent writes, "A property owner who claims a vested right to a nonconforming use need not show that the land cannot feasibly be used in conformity with the changed zoning.” (Post, p 584.) While this statement may be true in general, whether the land is suitable for the uses permitted in the zoning ordinance is relevant to the question whether a nonconforming use exists at the time the zoning ordinance is enacted.

In this case, the improvements to the land by way of the road construction, surveying, setting of monuments, grading, and excavation work have rendered the lots in the plat equally suitable for the placement of single-wide mobile homes and conventional dwellings. These improvements, therefore, do not constitute work of a substantial character which makes apparent an actual use of the plat as a single-wide mobile home plat. Nor does the fact that approximately one-fourth of the back lots are occupied by single-wide mobile homes establish the nonconforming use. The trial court found, and we agree, that the vacant lots would sell for conventional or modular home occupancy if the asking price were realistic and if screening were provided for the existing mobile homes. The presence of the existing mobile homes, therefore, does not create an actual use in the vacant lots for placement of single-wide mobile homes.

Because an insubstantial number of lots in the plat are occupied by mobile homes, and the lots are suitable for more than single-wide mobile housing, this case is distinguishable from the trailer park cases where use of the vacant spaces for trailers was readily apparent. See Patchak v Lansing Twp, 361 Mich 489; 105 NW2d 406 (1960); Richards v City of Pontiac, 305 Mich 666; 9 NW2d 885 (1943); Co Bd of Comm’rs v Petsch, 172 Neb 263, 268; 109 NW2d 388 (1961); Blundell v West Helena, 258 Ark 123, 131; 522 SW2d 661 (1975). We further note that in Patchak and Blundell only that portion of the tract clearly used for trailer park purposes was established as a nonconforming use. Extension of the nonconforming use to the entire tract was denied in each case because actual use of the entire tract as a trailer park had not been established at the time the zoning ordinance was enacted.³

Were it not for the zoning ordinance at issue, plaintiff would hold the option to sell the unsold unrestricted lots for the use which would command the highest price. Plaintiff claims that it can obtain a substantially higher price if the property is sold for mobile home use. Plaintiff therefore intends to sell the lots for that purpose. Accordingly, what plaintiff actually and understandably seeks here is preservation of an option to sell the unsold lots as sites for future nonconforming uses. However, plaintiff may be deprived of this option without offending the Due Process Clause as long as the zoning ordinance is not arbitrary or unreasonable. Austin v Older, supra, 677; Patchak v Lansing Twp, supra, 497-498. To hold that plaintiff must abide by the zoning ordinance in this case does not amount to a clearly confiscatory taking where the use of the entire plat as a single-wide mobile home plat rests solely within the owner’s contemplation.⁴

Nor are we convinced by plaintiffs suggestion that the township is estopped from enacting the zoning restrictions because it had notice of plaintiffs plans to sell the property as sites for single-wide mobile homes by virtue of the plat restrictions recorded in the Barry County Register of Deeds. The trial court found that the township approved plaintiffs plat without being aware of the plat’s restrictions. Moreover, plaintiff has not asserted any authority on appeal to this Court to support the proposition that the township is bound by these restrictions incurred privately by plaintiff with other parties. Therefore, this argument is without merit.

in. is the zoning ordinance invalid because it is

PREEMPTED BY FEDERAL AND STATE LAW AND WAS NOT ENACTED PURSUANT TO THE MICHIGAN MOBILE HOME COMMISSION ACT?

The plaintiff also contends that certain portions of the zoning ordinance are preempted by federal and state law, specifically, the National Manufactured Housing Construction and Safety Standards Act, 42 USC 5401 et seq., the State Construction Code Act, MCL 125.1519, 125.1520; MSA 5.2949(19), 5.2949(20), and the Mobile Home Commission Act, MCL 125.1101 et seq.; MSA 19.855(1) et seq. Both the trial court and the Court of Appeals disagreed with plaintiff, finding that the various acts provide construction and safety standards, not standards concerning proper land use, which is the thrust of zoning laws. We believe the lower courts have properly interpreted these statutes.

The purpose of the federal act is set forth in 42 USC 5401:

The Congress declares that the purposes of this chapter are to reduce the number of personal injuries and deaths and the amount of insurance costs and property damage resulting from manufactured home accidents and to improve the quality and durability of manufactured homes. Therefore, the Congress determines that it is necessary to establish Federal construction and safety standards for manufactured homes and to authorize manufactured home safety research and development. [Emphasis added.]

Further, § 5403(d) provides that no state or political subdivision thereof may establish a standard regarding construction or safety of any manufactured home covered under the act. The requirements of the zoning ordinance in the case at bar are not standards regulating the construction and safety of mobile homes. Rather, they have for their purpose the regulation of where mobile homes may be placed and under what conditions. These requirements are for the purpose of regulating land use and therefore do not conflict with standards promulgated under the federal National Manufactured Housing Construction and Safety Standards Act. Accord Brookside Village v Comeau, 633 SW2d 790 (Tex, 1982), cert den 459 US 1087 (1982).

The same reasoning applied to the Michigan State Construction Code compels a similar conclusion under that code. Further, MCL 125.1502(m); MSA 5.2949(2)(m) specifically excludes from the definition of "construction regulation” under the code "a zoning ordinance or rule issued pursuant to a zoning ordinance and related to zoning.” Therefore, we find that the Legislature has manifested an intention to specifically exclude from the code’s coverage ordinances like the ordinance at issue which have for their purpose the implementation of zoning goals.

Finally, we have carefully considered the briefs of plaintiff and amicus curiae, but are not persuaded that zoning ordinances which regulate the conditions and locations of mobile homes outside mobile home parks are included within the scope of the Mobile Home Commission Act. Our review of MCL 125.1105; MSA 19.855(5) reveals that the rules which are to be promulgated under that act relate to the construction of mobile home parks and the regulation of mobile home industries. Moreover, by enacting §45, subsection 2 of the act,⁵ we perceive that the Legislature intended to save ordinances validly enacted under the Township Rural Zoning Act, MCL 125.271; MSA 5.2963(1), from the provisions of the act. Therefore, we are not persuaded that the zoning ordinance at issue is invalid because those provisions establishing conditions for the placement of mobile homes outside of mobile home parks were not first submitted to the Mobile Home Commission for its review.

We affirm the decision of the Court of Appeals.

Brickley, Cavanagh, and Riley, JJ., concurred with Boyle, J.

1 Additional requirements were established for mobile homes placed in the best residential zoning classifications in the township. These latter requirements, as well as a requirement that all mobile homes located outside of mobile home parks secure special use permits, were invalidated by the trial court. No appeal having been taken by the township on this ruling, these requirements are not at issue in the present case.

2 "The ultimate purpose of zoning ordinances is to confine certain classes of buildings and uses to certain localities. The continued existence of those which are nonconforming is inconsistent with that object, and it is contemplated that conditions should be reduced to conformity as completely and speedily as possible with due regard to the special interest of those concerned, and where suppression is not feasible without working substantial injustice, that there shall be accomplished 'the greatest possible amelioration of the offending use which justice to that use permits.’ 'The accepted method of accomplishing this result is as follows: The nonconformity is in no case allowed to increase. It is permitted to continue until some change in the premises is contemplated by the owner, when, in so far as expedient, the authorities take advantage of this fact to compel a lessening or complete suppression of the nonconformity.’ ” [Austin v Older, supra, 675, quoting Williams, Law of City Planning and Zoning (1st ed), pp 202-203.]

3 In Patchak, the owner had not applied for nor secured the necessary license for operation of the vacant acres as a trailer park. Therefore, "[n]o nonconforming use was proven as to the south 10 acres.” 361 Mich 499.

In Blundell, the court explained,

Preliminary contracts or work which is not of a substantial nature is not sufficient to establish a vested right. The mere purchase of property with intention to devote it to a use is not sufficient in spite of preliminary work, such as clearing, grading and excavating, if that work is not of a substantial nature, or if the owner has not incurred substantial obligations relating directly to the use of the property. Appellant has failed to meet his burden of proof to establish a permissible nonconforming use for trailer spaces in Lots 26 through 44. That use would constitute an extension prohibited by the zoning ordinance. [258 Ark 134. Citations omitted; emphasis added.]

4 We are not in disagreement with the cases cited by Justice Levin in his opinion. Unlike the case at bar, in those cases, the existence of a nonconforming use was established by facts indicating the clear extent of the project as a nonconforming use.

Justice Levin in this case would find the existence of a nonconforming use by focusing on the right of a developer to be protected in his investment (which we understand to be the original investment) made on the basis of existing zoning. In doing so, the rights of the developer are elevated over the interests of the community at large. This concept would permit developers to freeze existing zoning by the fact of 'their initial investment — a notion that approaches the highly suspect practice of "spot zoning.” See, generally, McQuillin, Municipal Corporations, § 25.83, pp 242-250. (The legislative intent "in authorizing comprehensive zoning is reasonable uniformity within districts having in fact the same general characteristics and not the marking off, for peculiar uses or restrictions of small districts essentially similar to the general area in which they are situated. . . . Thus, singling out of one lot or a small area for different treatment from that accorded to similar surrounding land indistinguishable from it in character, for the economic benefit of the owner of that lot or to his economic detriment, is invalid 'spot’ zoning.”) Id., 242 (emphasis added). See also SBS Builders, Inc v Madison Heights, 389 Mich 323; 206 NW2d 437 (1973).

5 This section provides:

This act shall not be construed to prohibit a municipality from enforcing its local ordinances or from taking any other appropriate action to protect the public health, safety, or welfare as authorized by law or its charter. [MCL 125.1145(2); MSA 19.855(45X2).]