random enforcement

Asked October 6, 2013, 7:47 AM EDT

i have been notified for violations to the Burt Township (Alger County) zoning ordinance. Many other homes in Burt Township have the same issues. Can the zoning administrator enforce the ordinance on me and not all others? The issues have been in place for more than 2 1/2 years without complaint from the neighbor or township. There is also a conflict of interest between me and the zoning administrator, as well as the zoning board of appeals chairperson. My shed is too close to the property line, a flower box is to close to the property line, a 4 by 5 roof above an entrance door is too close to the property line,

Alger County Michigan

1 Response

Greetings,

To your specific question - 'can the zoning administrator enforce the ordinance on me and not all others' - the answer is yes, he/she can, but the township risks a challenge of selective enforcement (or arbitrary and discriminatory enforcement) in court. You might explore whether in fact the others whom you think are also in violation have received enforcement letters from the township. Sometimes after many years of weak enforcement, a new zoning administrator or new knowledge about the importance of routine enforcement, pushes the township to get back into regular enforcement, including routine drive-arounds and acceptance of complaints.

Before I go further, I am wondering if your shed and roof were in place prior to a change in the zoning setbacks, such that the issues would be merely legal nonconformities instead of violations. If they were legal at the time of construction and then the ordinance was amended, which made the shed and roof now in conflict with the new standard(s), they are allowed to continue as legal nonconformities (according to the MI Zoning Enabling Act, PA 110 of 2006), subject to provisions in the zoning ordinance.

Assuming the issues you identified are not legal nonconformities (i.e. they were constructed/installed in conflict with the zoning standards), one option you have is to appeal the enforcement action to the zoning board of appeals. Your appeal would be that the enforcement is selective and you would need to identify other examples where the zoning is not being enforced. If the township has been doing a poor job with enforcement (i.e. they haven't been enforcing the ordinance), it will be tough for the township to distinguish between legal nonconformities and actual violations.

It is highly unlikely that the ZBA (or a judge, if you filed suit in this regard) would require that your home be modified (the roof overhang) to conform to the setback. However, the flower box and possibly the shed are moveable (I presume) and those setback standards can be more easily enforced because complying with the standards now would not constitute a significant burden on your part.

Regarding the conflict of interest statement, I cannot say whether this would be a complication or not (without specifics). If you appealed the enforcement action to the ZBA and the chairperson legitimately had a conflict of interest, he/she would be replaced by an alternate member of the ZBA (which the ZBA is required to have) and the matter could then be reviewed more objectively.

If you have additional questions, please feel free to contact me at 906-475-5731 or neuman36@msu.edu.