New Ordinance Eliminates Requirements

Asked August 6, 2014, 9:12 PM EDT

Is there any justification for a municipality holding a property owner to restrictions required by an old zoning ordinance after enactment of a new ordinance that eliminates those restrictions, and which states it repeals the prior ordinance. Could a property owner be held to prior restrictions, and would any procedural process be needed to hold a property owner to conditions that are no longer required under a new ordinance, and which are not being applied to anyone else? This is the situation we find ourselves in. Need to know if this type of action would violate procedural due process, and if any case law or statute applies. Your expert opinion or insight would be helpful.

Genesee County Michigan

2 Responses

I have looked through the history of questions you have submitted and see this is an ongoing problem. At this point you would be wise to consult with an attorney that is experienced in municipal (planning and zoning) law -- that is an attorney which is a member of the municipal corporate section of the Michigan Bar or the Michigan Association of Municipal Attorneys.

To be a nonconforming land use, the use has to have been established in compliance with the old zoning/rules that were in place at the time it was established. If it was not established conforming to those rules then it would be considered a "violation" instead of a nonconforming use.

I do not know what the zoning ordinance in question says (neither the old or current one). But it is typical in Michigan for nonconforming uses to be required continue to comply with the old rules (and site plan approved at the time it was permitted). Or the landowner can bring the land use up to whatever the current zoning requires. So it is possible for a municipality to hold a property owner of a nonconforming use to restrictions required by a previous zoning ordinance. It is typical for zoning to require a property owner to come into compliance with all provisions of the current zoning, if the owner is not going to continue compliance with the former zoning. One cannot pick and choose which requirements to comply with.

Thank you for your response to our question, and for trying to assist us in addressing this very confusing issue. We will attempt to locate a municipal attorney, per your advice. When we purchased our property in 1983 to operate a home-based business, the zoning was residential & commercial mix. Businesses could be conducted, but only out of an enclosed area, such as a building or fenced area. We were in compliance with that zoning, thus, were never in non-conforming use. In 1989, our township rezoned the area General Commercial. Our business fell under permitted uses and the open air sales provision of the new ordinance. The prior ordinance was repealed, according to the new ordinance, and residential use became non-conforming. As residents, we are now in non-conforming use, but our business was a permitted use. However, township officials have stated the old ordinance, requiring fencing, still applies to our business. Thus, they restricted our business, and when we failed to maintain fencing, disallowed us from renewing licensing, effectively putting us out of business. We believe we should be under the new ordinance, and not be required to have fencing. If this were the case, we would not have been in non-compliance with the applicable zoning ordinance, and should not have been disallowed from continuing our business. We believe township officials have misapplied the requirements of the old ordinance, and we are attempting to find the basis for which ordinance would be applicable in our situation, so it can be determined if township officials have violated our rights through their actions.