Heath Township v. Sall

502 N.W.2d 627, 442 Mich. 434

• Court: Michigan Supreme Court
• Decided: June 22, 1993
• Docket: 92479, (Calendar No. 3)
• Status: Published

Opinions

Mallett., J.

We granted leave to determine whether defendants established a prior nonconforming use of their property as a mobile home park before passage of a referendum rejecting defendants’ rezoning proposal. The Court of Appeals answered affirmatively. We hold that defendants failed to prove the requisite tangible change in the property to establish a prior nonconforming use.

i

In 1985, defendants Gerald and Joyce Sail purchased approximately 16 acres of land in Heath Township with the intention of building a mobile home park on the property.¹ On the purchase date, the land was zoned R-2 (single-family residential zone) within which mobile home parks were not permitted. On October 13, 1986, however, the township board granted defendants’ request to rezone the property to R-3 (multiple-family residential). Subsequently, the residents, opposed to the zoning change, petitioned for a referendum pursuant to MCL 125.282; MSA 5.2963(12).²

On February 2, 1987, local residents voted to return the property to its original single-family residential classification. However, during the time between the board’s vote and the referendum, defendants spent approximately $18,000 preparing the site for construction. The work included developing detailed construction plans, procuring several local permits for future excavating and plumbing, purchasing sewer pipe, drilling a water well, constructing a wellhouse, installing four test wells, excavating for roads, removing topsoil, clearing trees, and obtaining a topographical survey.

Before the referendum, defendants filed an application with the state for a mobile home park license. Their initial application was returned with a request for additional information. In April 1987, defendants resubmitted the application after the unfavorable referendum vote. In late July, 1987, the state orally notified defendants and plaintiff that it intended to issue a mobile home park permit to the defendants.³ At this point, defendants began further construction.⁴ On August 17, 1987, the township wrote a letter to defendants insisting that they stop constructing the mobile home park. After defendants refused, the township filed an action for injunctive relief.

The Allegan Circuit Court enjoined defendants from occupancy, but allowed construction "at their own risk.” Relying on Gackler Land Co, Inc v Yankee Springs Twp, 427 Mich 562; 398 NW2d (1986), the trial court held that defendants’ actions before the referendum were insufficient preliminary operations that did not establish a prior nonconforming use. Accordingly, the court opined that the referendum zoning controlled, and that use of the property as a mobile home park would violate the zoning ordinance. Ultimately, on February 8, 1990, the trial court granted the township a permanent injunction.

The Court of Appeals reversed the trial court’s decision, stating:

In the case at bar, we agree with defendants that they took sufficient action toward changing the character of the land while the zoning permitted construction of a mobile home park on the parcel so as to grant the defendants vested rights and create a prior nonconforming use of the property as a mobile home park before the electorate’s decision to return the zoning to R-2. Specifically, while the preparation of the survey and site plans and the clearing of trees and debris would not be sufficient to create a prior nonconforming use, defendants’ conduct went beyond mere preparation for a change in use of the property. They installed a commercial water well, drilled four additional test wells, constructed a wellhouse, and excavated for the construction of roads for the mobile home park. We are satisfied that this action constitutes a tangible change in the land by excavation and construction that goes beyond mere preliminary operations to establish the nonconforming use. [191 Mich App 716, 719-720; 478 NW2d 678 (1991).]

Plaintiff Heath Township appeals the Court of Appeals decision granting defendants vested rights sufficient to create a prior nonconforming use of the property as a mobile home park. We reverse.

II

A prior 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. Dusdal v City of Warren, 387 Mich 354, 359-360; 196 NW2d 778 (1972). In other words, it is a lawful use that existed before the restriction, and therefore continues after the zoning regulation’s enactment. Generally, to establish a prior nonconforming use, a property owner must engage in "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). Once a nonconforming use is established, a subsequently enacted zoning restriction, although reasonable, will not divest the property owner of the vested right. Dusdal, supra. Thus, a prior nonconforming use is an exception to zoning’s general principle that certain uses should be confined to certain localities.⁵

This Court recently examined the standard for establishing a nonconforming use in Gackler, supra. There, the plaintiff platted approximately twenty acres of a 103-acre plat consisting of fifty-four lots. The zoning permitted mobile, prefabricated and site-built homes. After the township approved the plat, restrictions were implemented excluding mobile homes from twelve lakefront lots on the site. Later, the township enacted a zoning ordinance restricting mobile homes to mobile home parks. At this time, eleven single-wide mobile homes occupied the restricted lots. The township amended the ordinance to permit mobile homes meeting the definition of "dwelling” in any zoning classification where site-built or modular single-family residences were permitted. The effect of the ordinance was to exclude single-wide mobile homes from the plaintiff’s lots unless they met the definition of dwelling. Among other challenges, the plaintiff contended that he established a prior nonconforming use as a single-wide mobile home plat by constructing a road, surveying the plat, erecting monuments, completing grading and excavation work, and installing eleven mobile homes.

The lawful use of a . . . premise as existing and lawful at the time of enactment of a zoning ordinance, or in case of an amendment of an ordinance, then at the time of the amendment, may be continued although that use does not conform with the provisions of the zoning ordinance or amendment.

In holding that the plaintiff failed to establish a nonconforming use, we stated that

"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. [Citations omitted.] 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. at 574-575.]

Applying these legal standards to the facts, we held that because the improvements only made the lots equally suitable for single-wide mobile homes and conventional dwellings, they did not constitute "work of a substantial character which makes apparent an actual use of the plat as a single-wide mobile home plat.” Id. at 576. Thus, to constitute a legally cognizable nonconforming use, work of a substantial nature beyond mere preparation must materially and objectively change the land itself.

in

The zoning restriction’s enactment date is the critical point in determining when a nonconforming use vests. Dingeman Advertising, Inc v Algoma Twp, 393 Mich 89; 223 NW2d 689 (1974).⁶ Construction undertaken after the zoning regulation’s enactment is inapposite to determining whether a property owner tangibly changed the land. To hold otherwise would encourage noncompliance with the regulation and disparage the import and effect of a referendum.⁷ In the instant case, defendants understood as early as October 13, 1986, that a referendum was possible, if not likely. In fact, less than one month later, they knew that petitions were being circulated to initiate a referendum. Nonetheless, defendants decided to proceed with the construction of their proposed mobile home park. On February 2, defendants learned that the referendum passed, returning the property to its original R-2 classification. Accordingly, only construction between October 13, 1986, and February 2, 1987, the date the referendum invalidated the R-3 zoning, is germane to the current inquiry.

Defendants posit that they established a vested nonconforming use as a mobile home park before February 2, 1987, by (1) obtaining a topographical survey, (2) clearing trees and removing topsoil, (3) installing four test wells, (4) excavating roads, (5) drilling a commercial water well, and (6) building a wellhouse. An independent examination of each activity is necessary.

First, obtaining a topographical survey⁸ of the property is a classic example of an insufficient preparatory operation. In fact, in Gackler, supra, we expressly denounced "surveying the land” as a preliminary operation. Id. at 575. In City of Lansing v Dawley, 247 Mich 394, 397; 225 NW 500 (1929), this Court stated that "[defendant] did nothing of a substantial character. He went no farther than to order the plans and cause a survey to be made of the lot. This preliminary work was not sufficient to create a vested right to erect the building.” Second, under the facts of this case, clearing trees and removing topsoil are also preliminary ventures. In Gackler, supra, we also listed "the removal of old buildings” as an insufficient preparatory activity. Id. at 575. Clearing trees and removing topsoil are no more substantial than removing permanent structures such as buildings. As a result, they do not constitute work of a "substantial character.”

Third, defendants rely on the installation of four test wells on November 4, 1986. Because the sole purpose of these test wells was to determine the direction of water flow to locate an appropriate .place for a sewage system,⁹ and nothing more enduring, they are also preliminary in nature.

Fourth, defendants contend that in furtherance of roadway construction, they removed topsoil and deposited a sand subgrade on November 19-20, 1986. The only helpful testimony regarding roadway construction was that of a defense expert who worked on the site.

Well, first you’ve got to strip the topsoil and then you level the sand off for a subgrade and that gravel goes on, then later on you blacktop it.

Because of our admitted unfamiliarity with roadway construction, we would have greatly benefited from further testimony regarding the necessary steps for completion of a residential roadway. Without this assistance, it is difficult to determine whether removing topsoil and putting down a sand subgrade constitute work of . a "substantial character.” Nevertheless, as the defense expert’s testimony implies, we assume, at the very least, that a permanent road requires a grade, such as gravel, and a durable outer shell, like asphalt or concrete. Therefore, because defendants had not yet commenced the more cumbersome and conclusive stages of construction, their road excavation work was insufficiently substantial to constitute a prior nonconforming use.

Fifth, defendants rely on the construction of a five-inch, 184-foot deep commercial water well about October 14, 1986. The purpose of the well was to determine the quantity and quality of the site’s water. However, unlike the four test wells, the commercial water well was intended to eventually serve as the mobile home park’s permanent water source.¹⁰ Finally, defendants built a concrete block wellhouse in November, 1986. The eight foot high structure was insulated and entirely self-contained. Although testimony did not so indicate, because of the sound construction of the wellhouse, we assume that it was intended for permanent use. Thus, because of the perpetual nature and intended future use of both the commercial water well and the wellhouse, we tentatively conclude that they may constitute work of a "substantial character” that tangibly changed the land.

Michigan case law is clear that there must be construction beyond preliminary preparation to establish a prior nonconforming use. It is the present state of the property, not the present intention to put property to a future use, that must be the criterion. This examination of defendants’ activities indicates that only the commercial water well and wellhouse are individually pertinent. Neither of these activities, in light of the total construction a mobile home park requires, is sufficiently substantial to satisfy defendants’ burden.¹¹ A review of the record evinces that defendants have not borne the burden of proving that work of a "substantial character” toward construction of a mobile home park predated the referendum election.

Additionally, defendants’ activities, in the aggregate, are not substantial. In Gackler, supra, this Court held that the plaintiff failed to establish a prior nonconforming use despite a fully constructed road, erected monuments, graded and excavated plats, and installation of eleven mobile homes. Comparatively, in the instant case, the defendants removed topsoil and deposited a sand subgrade, but did not complete the construction, and cleared trees and removed soil, but did not fully grade or excavate the property; and, unlike Gackler, there were no occupied trailers on the property. Clearly, the construction undertaken in Gackler was more substantial than that in the present case. However, this Court in Gackler refused to recognize a nonconforming use.¹² Accordingly, on the basis of an individual analysis of defendants’ activities and Gackler, we find that defendants failed to establish a legally cognizable preexisting nonconforming use.

IV

Defendants not only failed to commence construction of a "substantial character,” they failed to obtain a mobile home permit before the referendum.¹³ As previously noted, defendants applied for a mobile home permit in December 1986. Because of the application’s deficiencies, it was returned to defendants for additional information. In April 1987, defendants resubmitted the application without informing the state authorities of the referendum. Ultimately, in July 1987, five months after the referendum passed, the mobile home commission granted defendants a verbal building permit. Under Michigan case law,¹⁴ a building permit, or its counterpart, a permit to commence operations, is an important factor in procuring a "vested right.”¹⁵ The significance of a permit is embodied in Dingeman, supra:

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 thereof, and substantial reliance thereon, will give such rights. [Id. at 98-99.]

This Court recently further examined building permits vis-á-vis nonconforming uses in Bevan v Brandon Twp, 438 Mich 385; 475 NW2d 37 (1991). We stated that "[w]here building permits have been applied for, but have not been issued, vested rights are not acquired, even though significant sums may have been expended by the applicant.” Id. at 402. Finally, a building or mobile home permit alone does not confer "vested rights.” Actual construction must begin. Dawley, supra.

v

We cannot state a comprehensive formula for precisely what activities are sufficiently substantial to eclipse the prior nonconforming use threshold. It is not a question susceptible of precise quantitative measurements. An evaluation of whether construction is substantial is "necessarily subjective and varies from case to case.”¹⁶ In this case, under the specific facts demonstrated in the record, we hold that defendants did not establish a prior nonconforming use before February 2, 1987. Their construction was not of a "substantial character,” nor did they obtain a mobile home permit.¹⁷

Accordingly, we reverse and remand to the Court of Appeals for determination of the issues not previously resolved.

Cavanagh, C.J., and Levin, Brickley, and Boyle, JJ., concurred with Mallett, J.

1 Defendants contended that the purchase price ($53,500) was $26,000 more than the land was worth without the anticipated rezoning. They were willing to pay the excessive price because the Heath Township land use plan showed the property to be within a future R-3 zone. Note, however, that the purchase of property with an intention to use it for a particular purpose does not give the owner a right to so employ the plat in violation of a subsequently enacted zoning restrictions. Detroit Edison Co v City of Wixom, 382 Mich 673, 685; 172 NW2d 382 (1969).

2 MCL 125.282; MSA 5.2963(12) provides, in pertinent part:

Within 30 days following the passage of the zoning ordinance, a petition . . . may be filed with the township clerk requesting the submission of an ordinance or part of an ordinance to the electors residing in the portion of the township outside the limits of cities and villages for their approval. Upon the filing of the petition, an ordinance or part of an ordinance passed by the township board shall not be invalidated unless it is rejected by a majority of the registered voters located in the portion of the township outside the limits of cities and villages voting thereon at the next regular election which supplies reasonable time for proper notices and printing of ballots, or at any special election called for that purpose.

3 Plaintiff contends that defendants did not inform the state of the referendum outcome, i.e., they misled the state, or at least remained silent when they should have been forthcoming.

4 Between February and August of 1987, defendants spent an additional $15,000 to prepare, construct, and equip the realty for use as a mobile home park.

5 The common law of prior nonconforming uses has been partially-codified. MCL 125.216(1); MSA 5.2961(16X1) provides in pertinent part:

6 See also City of Lansing v Dawley, 247 Mich 394, 396-397; 225 NW 500 (1929).

7 The propriety and policy of vesting in community residents certain powers of local regulation regarding matters about which they are deeply interested cannot be questioned. Because of their unique knowledge and involvement, citizens may be more competent to judge such matters than any central authority. See Stadle v Battle Creek Twp, 346 Mich 64, 70; 77 NW2d 329 (1956).

8 A topographical survey indicates ground elevations and any adjacent structures on or near the property.

9 At a show cause hearing, defendant Gerald Sail testified regarding the purpose of the test wells:

Q. Now, you also testified that in the fall of ’86 you had some test wells that were done and you testified that you wanted to find out about the water flow; were there any other reasons that you would do a test well for that area?

A. Not that I can think of.

Q. If you had done a test well and it was shown that the ' water quality was bad, would that have affected going ahead with the project?

A. These test wells were not to test the water quality, they are to test the way which the water flows so that we could find the location for the sewage system.

A defense expert similarly testified:

Q. Now, we have talked generally about wells and we have heard from Mr. Sail that four test wells were installed, were those installed at your direction?

A. Yes, those were four monitor wells installed to determine —to do kind of a preliminary hydrologic survey to determine the direction of ground water flow on the property; that is used to determine the direction that the water is going to flow away from the sewage disposal system, so that we can keep that system in an area which will not be detrimental to other properties or water supply wells.

10 It should be noted that on February 2, 1987, the wellhouse contained no plumbing. Had it contained adequate plumbing, it surely would be sufficiently substantial to be considered in determining whether a nonconforming use was established. Nevertheless, even without the necessary plumbing, we reluctantly conclude that the construction of the wellhouse was substantial enough to be considered.

11 Although the amount expended is not determinative, see Gackler, supra, defendants spent approximately $18,000 of an estimated $64,000 required before occupancy. The additional $46,000 would have been spent on providing electricity, a sewage system, gas, telephone, and water, among other services.

12 Admittedly, Gackler differs from the present case. Unlike Gackler, the instant case concerns the construction of a mobile home plat, not the development of a platted subdivision. Nonetheless, we find Gackler instructive.

13 MCL 125.1113; MSA 19.855(13) (now renumbered MCL 125.2313; MSA 19.855[113]) provides:

(1) A person shall not construct a mobile home park or seasonal mobile home park without obtaining a permit issued by the department.

(2) Construction may begin upon the granting of a permit to construct by the department.

14 See Bevan v Brandon Twp, 438 Mich 385; 475 NW2d 37 (1991); Franchise Realty Interstate Corp v Detroit, 368 Mich 276; 118 NW2d 258 (1962); De Mull v City of Lowell, 368 Mich 242; 118 NW2d 232 (1962).

15 A building permit is only pertinent to obtaining a vested right. We do not intend to imply that a permit is required to conduct initial construction. In fact, the defendants obtained various local permits after the referendum.

16 Beasley v Potter, 493 F Supp 1059,1072 (WD Mich, 1980).

17 Today’s holding should not be read by developers to encourage a frantic race toward an arbitrary percentage of completion. Important factors to be considered are whether the developer obtained a permit, what and when the developer knew and what further construction was necessary to complete the project.