special use permits on private roads

Asked July 9, 2014, 10:27 PM EDT

In 2007 we amended our zoning ordinance to require a 22 ft road bed on private roads to approve special use permits. We have many private roads that existed before the change. Do we have to deny permits on those roads that existed Pryor to the change unless they are improved to the 22 ft requirement

Delta County Michigan

1 Response

Greetings,

This sounds like a situation involving nonconformities. In other words, the private roads were legal when they were constructed and now the law has changed, but the roads are 'grandparented' in as legal nonconformities.

I am interpreting the question to be asking whether a request for a special land use on a property served by a legal nonconforming private road should be denied, based on the nonconforming nature of the private road. In this case, the legal nonconforming nature of the private road would not be the reason for denying the special land use (but there could be other standards in the ordinance that are not met on which a denial should be based).

The Michigan Zoning Enabling Act states in Section 208(2) “The legislative body may provide in a zoning ordinance for the completion, resumption, restoration, reconstruction, extension, or substitution of nonconforming uses or structures upon terms and conditions provided in the zoning ordinance.” So, you can establish standards for which nonconformities can be changed, but you must allow them to continue. This is a basic property rights protection in zoning that allows for rights to the use of land to be ‘vested’ upon first using the land in a particular way (so long as it is lawful) and subsequent changes to the law cannot force compliance until the landowner takes explicit action to discontinue the use him/herself.