self created lot

Asked December 18, 2018, 11:14 AM EST

I am mastercitizen planner in michigan and questions have arose on if a lot split was self created and was never resolved because of passage of time can it become legal in zoning laws

Charlevoix County Michigan community planning and zoning zoning citizen planner

3 Responses

December 20, 2018

Hi Charlevoix County,
This is a difficult question to answer in general terms. In the case of lot splits, nonconforming lots, platted lots, and lots that may have been created but do not comply with zoning- the devil lies in the details. Without knowing the specifics, I don't think I can answer your question accurately. Here are a few resources to review, and if you need additional assistance or have specific questions please feel free to e-mail me at reillym8@msu.edu with additional details.
https://www.canr.msu.edu/news/nonconformities_in_zoning_is_the_source_of_much_confusion
https://www.canr.msu.edu/news/understanding_nonconformity_are_you_granfathered_in

I see that you have referenced the term “self-created” which is a common term used around variances. A very recent published court case (City of Detroit v. City of Detroit Board of Zoning Appeals, October 13, 2018) involves a nonconforming lot in the City of Detroit that may be particularly informative on this issue. The case wrestles with whether or not a nonconforming lot can be considered a self-created hardship for the purpose of receiving a use variance.
https://www.courtlistener.com/pdf/2018/10/23/city_of_detroit_v._city_of_detroit_board_of_zoning_appe...

It is a lengthy opinion, but it references many other important cases that guide the legal framework of what constitutes "self-created" for the purposes of a variance. Again, feel free to write back and I will see if I can provide additional assistance, otherwise you may need to consult an experienced municipal attorney.

Best Regards,
Mary Reilly


Hi thanks for your response but I will be more specific concerning self created lot splits by example if one purchased a legal nonconforming lot and split it into 2 lots for taxation reasons and decided to sell one of the lots not family related causing a self created parcel for zoning purpose and a variance was requested to build a deck and it was granted for reasons that the new owner of the split taxed parcel did not self create this very small parcel.but the ZBA also gave conditions. my question is if passage of time and the other taxed parcel sold is the self created status still binding

Hi Again,

Thanks for the additional detail. I should start by saying that what you are describing is commonly litigated—and because of this it is wise to consult an experienced municipal attorney if any additional appeal or legal action is considered. As they say, “free legal advice is worth every penny you paid for it”.

In a 1984 MI Supreme Court case (Johnson v. Robinson Township)—the ZBA denied a variance request on a nonconforming lot noting that the practical difficulty was self-created. The smaller lot was created by the family—a father divided one parcel into three parcels all of which were nonconforming. 17 years passed after the lot was created and the owner (son) sought a variance to construct a residence on the undersized lot. The Circuit Court and the MI Court of Appeals reversed the variance and found that the issue of creating the nonconforming lot or buying a nonconforming lot did not preclude a person from challenging the ordinance and obtaining a variance. It was not until it arrived at the Supreme Court that the ZBA’s decision to deny the variance was upheld based on the fact that the predecessor in title created the need for the variance.

The Supreme Court noted that “The Zoning Board of Appeals was surely correct in foreseeing that, if these plaintiffs could obtain the requested variance, there would be little basis to ever deny a subsequent similar request. A township board of appeals is authorized to issue a variance where there are "practical difficulties or unnecessary hardship in the way of carrying out the strict letter" of the zoning ordinance. In this case, the only practical difficulty or hardship is one that was produced by the plaintiffs' family.” This Supreme Court case is still regularly cited and would support the ZBA’s decision to deny variance requests that arise from the actions of the current or previous owner.

So the question becomes—how can this situation be avoided?

1) Review zoning ordinance standards: While similar in some respects, the actual zoning ordinance wording for standards to grant a variance are different in each community. You may want to review your local ordinance standards for granting a variance—many ordinances say something like “the practical difficulty was not created by the owner or the predecessor in title” -- this kind of language makes clear(er) to the ZBA members that if the preceding owner created the problem, it may result in a denial of a variance. I say “may” here because the nonconformity itself may not be the cause for the variance request- it could be some physical feature of the property that has nothing to do with the area or dimensions of the lot. Some ordinances do not have this language and may only say “the practical difficulty was not created by the owner.” This could leave the issue up for interpretation by a ZBA—and perhaps they need some additional training or education.

2) Ask an attorney and review the “why” behind minimum lot sizes: My reason for providing court cases as a reference is to show that this is a subject that is often interpreted differently—by different courts and different attorneys. It would be important to consult an experienced zoning attorney to assist the ZBA or provide a legal opinion if this is a common type variance request and is a concern to the community. Overcrowding around inland lakes on old platted lots often create water quality concerns for Michigan residents. Slowing the overcrowding on lakes and the ability to support better well/septic functioning is usually the foundational reason for requiring larger lots. A ZBA might lose track of some of the reasons for “why” they would deny a variance like this. Perhaps they need to review the Master Plan or receive additional training.

3) Inconsistent or lengthy delay in enforcement causes issues: The concept of “laches” may also be of interest to you with your question “if passage of time and the other taxed parcel sold is the self-created status still binding”. In your example, it would not be possible to describe the specific amount of time that could pass to allow for some kind of relief to the property owners of these nonconforming lots—or relief due to changes in ownership or an unsuspecting/innocent property purchaser. The doctrine of laches is an important legal concept, however, that encourages the local unit of government to enforce on violations in a timely manner and follow through. Inconsistent enforcement or no enforcement at all for many years—followed by enforcement—can create certain legal risks.

“The doctrine of laches requires the passage of time combined with a change in condition that would make it inequitable to enforce the claim against the defendant. Laches can be applied to bar an attempt to abate a zoning ordinance violation..” (Township of Yankee Springs v Richard Fox, October 12, 2004, MI Court of Appeals)

The concept of laches is a complex one—and best left to an attorney if you want to explore it further.

4) Consider being pro-active: In order to be more pro-active about splitting a conforming lot into two or more nonconforming lots, some communities go so far as to flag all adjoining nonconforming lots in a GIS system or file an affidavit on adjoining nonconforming lots that indicates that if lot A is ever sold separately from lot B then the parcels will be nonconforming and X, Y and Z could result. This could be some amount of work—but it is possible. The affidavit is a powerful means to put future property owners on notice about zoning requirements that the current owner may not want to acknowledge—and, yes, this has also been litigated. Many communities have very specific ordinances or policies when granting lot splits (even for old platted parcels) that would require zoning approval in advance of splitting the lot. As a zoning administrator, I gave the bad news to many land owners requesting to create two nonconforming lots (but together they own a conforming lot) telling them they could not sell off the “extra lot”. This was crushing to them—but the zoning ordinance language was clear and it needed to be enforced. The most opportune time to say "no" is ahead of the split or sale—not when a variance is being requested for a deck that is presumably attached to a house that was constructed on a lot that should perhaps not have been allowed to be sold separately in the first place.

My goodness—how is that for long winded answer!

Best Regards,

Mary R.