Non-conforming use reverting zoning back to previous zoning

Asked August 19, 2014, 9:36 AM EDT

When we purchased our property, it was zoned mixed residential/commercial. Businesses were allowed, but only if enclosed by a building or fencing. We operated a home-based business under that zoning as a conforming use with fencing. The zoning was eventually changed to General Commercial. This eliminated the requirement for fencing, allowing businesses to conduct open air sales. The intent of the new zoning was to allow businesses to operate in a less restrictive environment as permitted uses have no special conditions attached. Our business is a permitted use in this district, and we believe should be entitled to open air sales, as everyone else is. However, we are still living on the property, now as a non-conforming use resident in the General Commercial District. Does this non-conforming use of the property as a resident also put the business back under the previous zoning? Our Township claims we are grandfathered back into the more restrictive zoning, and still required to have fencing to conduct business. We believe this conflicts with the intent of the current Zoning Ordinance which repealed the previous Zoning Ordinance, and allows sales in the open. Should we be entitled to the new zoning, or is the Township correct in claiming we’re grandfathered back into the more restrictive zoning?

Genesee County Michigan community planning and zoning

3 Responses

If I am reading your issue correctly, you are wanting the best parts of both the current and previous zoning laws.. This is not how it usually works. If the new zoning does not allow occupancy, it stands to reason you would be grandfathered under the old system. Whether you would then been held to the old standards will require a lawyer or a frank conversation with zoning administrator on how you should proceed. What you may be able to do is keep the grandfathered occupancy but ask for a variance of use that follows the less restrictive business side of the code. Zoning carries forward to the subsequent owner but a variance (at least in Indiana) does not. You could also potentially do this in reverse where occupancy is allowed under the variance but the next owner of the property would not be able to live in the dwelling (strictly a business). Where this becomes important is for bank operational and purchasing loans (property is valued differently for different zoning).

I wish well and good luck,
Scott

Thank you for your response. We are dismayed to see rhat in your expert opinion it appears we are not allowed to use our property as permitted by the zoning ordinance. We believed it was allowed, and that a variance was not needed for any use permitted.

From experience and being honest with you, it does not matter what my expert opinion is if your township zoning board does not agree. I tried to point out a pathway for satisfaction via a variance. There may be other options I am not aware of in your local situation. If the zoning administrator is unable or unwilling to help you proceed forward to meet your needs, you will need to hire legal counsel from someone who has familiarity with your zoning rules and procedures. You may need to hire legal counsel regardless of how helpful your administrator or board is.

Best regards,
Scott