Non-conforming use termed a district

Asked July 24, 2014, 11:16 AM EDT

We’re located in the General Commercial District in our township. We purchased our property in 1983 to operate a home-based automotive business. At the time, it was zoned GC3 with mixed Residential/Commercial use. Fencing was required as a condition of this use at that time. In 1989, the area was rezoned General Commercial, allowing open air sales, with permitted uses including used car sales and auto repair. However, we are bordered on both sides by residents who lived there prior to this change. Township officials claim these residents are not non-conforming residents living in the General Commercial District, but are still designated a Residential “District” because they resided there prior to the change in zoning. Since, in the township’s opinion, these are Residential Districts, the residents there have been given preferential status they would not have if they were non-conforming residents in the GC District, and we have been treated differently than any other similar businesses in the GC District to the point of not being allowed to continue in business since we didn't have what they refer to as obscuring berms/fencing around everything. This has led to multiple issues, confusion, and years of legal wrangling. We understand that the Zoning Ordinance should prevail according to MCL 125.3210 Act 110 of 2006; an answer you previously provided us. However, in the township’s view, requiring enclosure doesn’t conflict with the Zoning Ordinance since it also requires an obscuring berm for businesses located next to a residential “district”. The township’s Master Plan states the township should attempt to eliminate non-conforming use in the GC District, but, in their opinion, viewing these residents as a “district,” makes it acceptable for the residents to expand their structures, which, as non-conforming, is disallowed by the Zoning Ordinance, and in conflict with the Master Plan. And it supports the township’s suppression of any business next to them in an attempt to lessen the impact on them, which is what has happened to us. Unfortunately, they just informed us of the designation they have given these bordering properties. Is the Township correct or in error designating these properties Residential Districts, and is there case law or any legal opinion that supports or refutes their position, or has set precedence in a situation like this?

Genesee County Michigan

3 Responses

The real issue lies with the 1989 rezoning. Did the township include the parcels with a residential use on them in the area rezoned to general commercial? If yes, then they are considered a non conforming use. If the answer is no they were not rezoned , they would be considered to be under the original zoning. The answer to this question would be in the zoning amendment records from 1989. Maintaining a residential use after a rezoning does not nullify a rezoning. Also, did the township take any formal action such as amending the ordinance to designate these parcels as residential or simply designate them as residential via a motion or resolution?

If one or two parcels were not rezoned as part of a larger change in zoning affecting numerous parcels it may be considered spot zoning as it confers special benefits to a small number of parcels.

However, if the standards for buffering or enclosure have changed while you maintained your commercial use adjacent to a residential zoned parcel, you would be considered non conforming. If the standards changed with the 1989 change in zoning and you were in compliance with the previous standards and have not expanded or altered your commercial use you would fall under the non conforming standards. If this were the case you would not be forced to come into compliance with the newer regulations.

Thank you for your prompt response. Yes, the parcels in question were included in the rezoning from mixed residential/commercial to General Commercial in 1989. Thus, according to your answer the properties adjacent to us, still being used as residences would be in non-conforming use. Although we are living on our property in non-conforming use, our business conformed to the current zoning as a permitted use. The standards for buffering or enclosure were eliminated with the enactment of the 1989 Zoning Ordinance, however, the township has maintained that we still are required to have them because they view the non-conforming use residences bordering us as a Residential District. According to the Zoning Ordinance, the township building official was mandated to list the non-conforming properties when the Zoning Ordinance was enacted in 1989. We have FOIA'd the list, and there is none, thus we believe there has been a long-term policy and practice of treating these residential-use properties as a District when they are not, in violation of due process. Would there be any justification or precedence for the township designating these parcels as a Residential District, and eliminating our ability to conduct open air sales, for which the district is zoned, based on that? We believe our township is in error in designating these non-conforming residential parcels in the General Commercial District as a Residential District without due process. In so doing, they have placed requirements on or business that eliminated our ability to conduct open air sales as all other businesses in the GC District are allowed to do. Is there any court case or legal document that would address this type of situation, and clarify how these parcels should be designated?

The zoning map is the document that shows the applicable zoning for each parcel in the community. To change this map requires legislative action by the township. They can not simply designate an area or parcel as residential if it is zoned otherwise.

If the map shows a parcel as zoned commercial but is a non conforming residential use, it is considered zoned for commercial and would not be a residential district.