Asked February 21, 2019, 4:16 PM EST

A small commercial use shares a driveway with a neighboring small multi-family use and has for a long time (likely decades, but unknown for sure). The property line is approximately in the middle of the drive. The municipality seeks to have one owner rebuild the drive to new standards as part of site plan approval. The owner has no formal easement for use, access or working on the drive across the property line. Can the municipality force the property owner to rework that which he has no rights to rework? Can the municipality force the property owner to formalize the easement to continue using it? Can the municipality force the property owner to close up the half of the drive on his property and build a new one elsewhere? How can the property owner close up half the drive and not work on the neighbors property?

Kent County Michigan

1 Response


Thank you for submitting this question. It appears that this is a legally complicated situation that exceeds MSU Extension’s ability to speak in generalities about proper procedure, zoning, site plans, etc. Easements are unique to a property, it’s users, and historical pattern of use. Historical use of this type of shared access easement is particularly important if there is no easement on record. Typically, access easements are formal agreements between private land owners or private parties and can only be enforced by those with an interest in the easement. It is not within the scope of a zoning ordinance to enforce the conditions of an easement between two property owners. A judge is the proper party to make a determination in a dispute regarding an access easement.

In this respect, it is not common for a municipality to get into zoning enforcement matters relating to a private easement. It is also unusual to compel an adjoining property owner to improve their property as a result of site plan approval on a separate property.

This community may be relying on a private road ordinance or some other type of ordinance—with the intent to ensure proper access for fire and emergency vehicles. There may be a rational basis to make this requirement, but I am not familiar enough with the situation to speak on it.

Due to the unique history here and considerable body of law around private easements, I recommend that you consult with a municipal attorney with a background in zoning or property law to proceed.

Note that you may be able to appeal the decision of the Planning Commission to the Zoning Board of Appeals and then on to Circuit Court, if that is the direction you wish to head. An appeal to the ZBA would “stay all proceedings” on this site plan such that no work would proceed until the ZBA has made a ruling. If this is a special land use request, it is possible that an appeal would go straight to Circuit Court- it depends on if the ordinance authorizes the ZBA to hear a special land use appeal or not. The Zoning Administrator would be the person to contact on how to proceed with an appeal to ZBA or could let you know if it needs to go to Circuit Court. If it were going to Circuit Court, you would need to hire an attorney also.

I recommend that you consult with an experienced municipal attorney on this issue. Best Regards,

Mary Reilly