Dusdal v. City of Warren

• Decision Date: 04 May 1972
• Docket Number: No. 21,21
• Citation: 196 N.W.2d 778,387 Mich. 354
• Parties: , 4 ERC 1110 Otto DUSDAL, Plaintiff-Appellant, v. CITY OF WARREN, a Municipal Corporation, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 778

196 N.W.2d 778

387 Mich. 354, 4 ERC 1110

Otto DUSDAL, Plaintiff-Appellant, v. CITY OF WARREN, a Municipal Corporation, Defendant-Appellee.

No. 21.

Supreme Court of Michigan.

May 4, 1972.

L. Edwin Wenger, Harper Woods, for plaintiff-appellant; Larry D. Vande Vrede, Harper Woods, of counsel.

Sherman P. Faunce, II, John J. Murray, Warren, for defendant-appellee.

Before the Entire Bench.

BRENNAN, Justice.

FACTS

Plaintiff is the owner of a parcel of land one and one-half (1 1/2) acres, rectangular in shape, being 629 feet deep and 98 feet wide. This property is located on the west side of Hoover Road between Ten and Eleven Mile Roads in the City of Warren.

Plaintiff purchased the property in 1950, when Warren was still a township. The land was then zoned by the township for 'multiple use.' We are told that 'Multiple use' meant that the property could be used for industrial, commercial or residential purposes. Plaintiff's and surrounding lands were then being used for agricultural purposes.

Whatever the township zoning prohibited, it is clear that plaintiff, in the year 1950, moved several large punch presses onto his land, and after obtaining a building permit from the township began constructing a cement block building around the presses.

What is not so clear is the precise use to which this land was put. Plaintiff seems to have been a kind of mechanical dabbler, whose many enterprises are sporadic and unrelated.

Among the various items scattered or stored on plaintiff's property during the years 1950 to 1969 were several junk automobiles, two bulldozers, a truck with a boom, a cultivator, plow and disk, some white escort carts, a portable are welder, some old tires and wheels, a housing for an engine, an axle for a trailer, a bulldozer trailer, a materials conveyor, a house trailer, a boat, and miscellaneous wood and metal scrap.

A photograph of the premises, introduced in evidence at the trial is reproduced with this opinion.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Plaintiff completed the main part of the cement block structure, but has never obtained a final inspection or approval of the building or been issued a certificate of occupancy.

In 1952, the township zoning ordinance was amended. Plaintiff's property and surrounding lands were then designated residential and restricted to such use. There is no dispute that at the time of such amendment, plaintiff's property was dedicated to a nonconforming use.

In 1957, the township became the City of Warren. Township zoning ordinances were adopted by the city.

In 1956, an action was commenced by homeowners living near plaintiff's property for the purpose of prohibiting plaintiff's industrial use of his land. Thirteen years later that action was dismissed for lack of progress. On April 25, 1967, the defendant city passed a resolution declaring the plaintiff's property a public nuisance. The plaintiff was directed by a resolution of the city council to remove all outside storage of materials and machinery by 5:00 p.m. April 1, 1968.

Plaintiff's response was to commence this litigation. It is founded upon a complaint filed in the Macomb County circuit court on April 1, 1968, alleging that the actions of the defendant city in refusing to issue a certificate of occupancy and in declaring plaintiff's property a public nuisance amounted to a confiscation of plaintiff's lands. The complaint alleged that the plaintiff had a prior nonconforming use of his premises for industrial purposes which was established as a vested right prior to the residential zoning imposed by the amendment of 1952.

The defendant city filed a counter-complaint, alleging that its resolution declaring the public nuisance was proper and regular and asking the court for injunctive relief to abate the claimed nuisance.

Trial was held before the Honorable Walter P. Cynar, circuit judge in Macomb County. He rendered his opinion on April 1st, 1969. Judge Cynar found that the residential zoning ordinance was not unreasonable. He ordered the plaintiff to remove the junk stored on the outside of the premises, exempting from said order certain equipment found not to be junk.

Plaintiff appealed and the Court of Appeals, 23 Mich.App. 583, 179 N.W.2d 188, affirmed the judgment of the circuit court in a brief per curiam opinion, citing Padover v. Township of Farmington, 374 Mich. 622, 132 N.W.2d 687 (1965); Biske v. City of Troy, 381 Mich. 611, 166 N.W.2d 453 (1969); Brae Burn, Inc. v. City of Bloomfield Hills, 350 Mich. 425, 86 N.W.2d 166 (1957); Lamb v. City of Monroe, 358 Mich. 136, 99 N.W. 566 (1959). None of these cases involved a prior nonconforming use.

In an action based upon a prior nonconforming use the reasonableness of the zoning amendment is not in issue. A prior nonconforming use is a vested right to continue the lawful use of real estate in the manner it was used prior to the adoption of a zoning ordinance. Though the ordinance be reasonable, it cannot operate to oust the property owner of his vested right. The finding of the circuit judge that the ordinance was not unreasonable was irrelevant. We are satisfied of the existence of the prior nonconforming use not only from the proofs but from the factual findings of the trial court. While the trial court did not elaborate upon the subject, its opinion did cite the section of the ordinance of the City of Warren dealing with abandonment of nonconforming uses, and it may be that the court concluded that the sporadic and irregular nature of the plaintiff's user was tantamount to an abandonment.

The record does not support a finding of legal abandonment. Abandonment in the contemplation of the law is something more than mere nonuser. It is rather a nonuser combined with an intention to abandon the right to the nonconforming use. The burden of proving abandonment was on the city. It introduced no evidence from which it would be reasonable to conclude that the plaintiff ever intended to relinquish or abandon his vested right to use his property in the manner in which it was being used prior to the residential zoning amendment.

The record does not support a finding that the plaintiff was engaged solely in the electrical contracting business. On the contrary, the record can only support a determination that the plaintiff was engaged in numerous endeavors from the year 1950 down to and including the trial in 1969.

The existence of a vested right to a prior nonconforming use does not Per se resolve the issue of nuisance, but it does mean that the existence of a nuisance is not to be inferred from proof of activities which do not comply with the zoning ordinance. The judgment of the circuit court and the Court of Appeals are reversed and this cause is remanded to the circuit court for further proceedings in accordance with this opinion. Plaintiff shall have costs.

T. M. KAVANAGH, C.J., and T. G. KAVANAGH and BLACK, JJ., concur.

ADAMS, Justice.

I. The Proceedings

In August 1950, plaintiff purchased 1 1/2 acres of land in Warren Township, Macomb County, Michigan. At that time, the property was zoned for three purposes--industrial, commercial, and residential. Plaintiff moved onto his land three large punch presses and other equipment he used in his various occupations of restoring old cars, electrical work, and general contracting. On October 4, 1950, Dusdal applied for a building permit for a commercial building. On October 6, 1950, after a first trench examination, the inspector noted on an inspection card that the building would be industrial. He based this change in classification on the presence of the presses.

In 1952, the City of Warren rezoned the area to residential only. From time to time, various improvements on Dusdal's building were approved by the city. The city never interfered with his use of the land. However, on April 25, 1967, in response to complaints from the neighborhood concerning junk on the property, the city passed a resolution declaring the property a public nuisance and ordering plaintiff to remove the debris from his outside premises.

Dusdal thereupon applied for an injunction in April 1968 to prevent the city from carrying out its resolution. He complained that he used his property for industrial purposes, that the city had refused to grant him an occupancy permit, that he had been ordered to remove all outside storage materials, and that the refusal of the occupancy permit and the order to remove the outside materials constituted confiscation of his property and prohibited a nonconforming use.

The city denied that its actions were confiscatory or prohibited Dusdal's enjoyment of his nonconforming use and, by counter-complaint, asked that it be allowed to order Dusdal to remove 'the litter, articles and junk from said premises.'

The circuit judge issued a show cause order to Dusdal as to why he should not be ordered 'to abate the public nuisance and remove the litter, articles and junk from said premises.'

Dusdal then amended his complaint to challenge the residential zoning of his property. The city answered that plaintiff had a nonconforming use but had illegally expanded that right by allowing open storage and junk. Under the city's ordinances, open storage is allowed on industrial M--2 property, but junk is allowed only on industrial M--4 property. Any lawful nonconforming use existing at the time of rezoning is allowed to continue. Failure to continue a use for one year or more is stated to be conclusive proof of legal abandonment.

At the trial in 1969, it became clear that Dusdal wanted a nonconforming industrial use or his property rezoned M--2. Dusdal's testimony showed that he repaired an average of one car a year, made some lighting poles and ventilating systems, and did some remodelling and repairs on buildings. Nothing was manufactured on a mass production basis. Outside of the building, there was a car chassis basically stationary for 17 years,...