Eveline Tp. v. H & D Trucking Co.

• Decision Date: 21 November 1989
• Docket Number: Docket No. 109927
• Citation: Eveline Tp. v. H & D Trucking Co., 448 N.W.2d 727, 181 Mich.App. 25 (Mich. App. 1989)
• Parties: EVELINE TOWNSHIP, Plaintiff-Appellant, v. H & D TRUCKING COMPANY, Defendant-Appellee. 181 Mich.App. 25, 448 N.W.2d 727
• Court: Court of Appeal of Michigan

Page 727

448 N.W.2d 727

EVELINE TOWNSHIP, Plaintiff-Appellant, v.H & D TRUCKING COMPANY, Defendant-Appellee.

Docket No. 109927.

181 Mich.App. 25, 448 N.W.2d 727

Court of Appeals of Michigan.

Submitted July 11, 1989.

Decided Nov. 6, 1989.

Released for Publication Nov. 21, 1989.

[181 MICHAPP 27]Stephen B. Graham, Petoskey, for plaintiff-appellant.

Stroup, Mulhauser, Johnson & Tressider, P.C. by Nathaniel W. Stroup, Petoskey, for defendant-appellee.

Before MICHAEL J. KELLY, P.J., and WAHLS and HOLBROOK, JJ.

MICHAEL J. KELLY, Presiding Judge.

Plaintiff Eveline Township appeals from a circuit court order dismissing its action for injunctive relief against defendantH & D Trucking Company.The township sought to enjoin defendant from violating certain provisions of the township zoning ordinance.Defendant counter claimed that the ordinance was improperly exclusionary, and thus void as applied to defendant's land.The circuit court dismissed plaintiff's complaint, and found the zoning ordinance void as to defendant's land.We now affirm the circuit court's decision.

The land involved in this appeal is a four-acre parcel located on Lake Charlevoix in Eveline Township.The parcel has been a commercial deep-water port since the 1890s, being used as a place where cargo boats could come close to shore to unload bulk cargo such as iron and stone products.Unloaded materials are also stored at the area until they can be removed by truck.The property [181 MICHAPP 28] is the only location in the township where large vessels can come close to shore to unload bulk cargo, and is the only open deep-water port available for use in Charlevoix and Emmet Counties.

Plaintiff township passed its zoning ordinance in 1969.Under the ordinance, defendant's land was zoned for commercial use.The ordinance does not list ports as a permitted use.Township representatives conceded that deep-water port facilities were not a permitted use within any of the districts established by the ordinance.

In 1980 and 1985, defendant began to level and grade the site without first applying for a permit from the township or seeking approval from the zoning board.Defendant did apply for and receive appropriate permits to perform this work from the Department of Natural Resources and the Army Corps of Engineers.

Due to this leveling and grading, the township sued defendant to enjoin it from violating the zoning ordinance by not filing a development plan, by attempting to expand a nonconforming use, and by destroying the "green belt" required by the ordinance.The township sought injunctive relief to have the green belt restored, to enjoin defendant from expanding its use of the site past the level of use in 1969, and to require defendant to submit a grading plan as required by the zoning ordinance.Defendant counter claimed against plaintiff, challenging the zoning ordinance as impermissibly exclusionary zoning.

After a bench trial held in May and June of 1987, the circuit court found that defendant had not expanded its prior nonconforming use of the port, but that the entire property was dedicated to commercial port usage prior to passage of the township's ordinance in 1969.The circuit court determined that it was not possible to establish [181 MICHAPP 29] the port's level of use in 1969 or whether it was less than at present.The circuit court found that defendant did not violate the green belt provision in the ordinance because it applied only to property zoned residential.The circuit court also found that the township zoning ordinance was improperly exclusionary under M.C.L. Sec. 125.297a;M.S.A. Sec. 5.2963(27a).The circuit court dismissed plaintiff's complaint and found plaintiff's ordinance void and unenforceable as applied to defendant's parcel to the extent that it would prohibit or restrict the use of the property as a commercial port facility and material storage area.

I

The township first argues that the circuit court erred by finding that the entire four-acre site was dedicated to commercial port usage prior to the advent of the township zoning ordinance.We disagree.

The lawful use of a parcel of land existing at the time of enactment of a zoning ordinance may be continued although the use does not conform with the ordinance or amendment.M.C.L. Sec. 125.286(1);M.S.A. Sec. 5.2963(16)(1);Independence Twp. v. Eghigian, 161 Mich.App. 110, 115-116, 409 N.W.2d 743(1987), lv. den.429 Mich. 872(1987).Such a continuation of a nonconforming use must be substantially of the same size and essential nature as the use at the time of the passage of the zoning ordinance.Independence Twp., 161 Mich.App. p. 116, 409 N.W.2d 743.

Here the circuit court found that all of defendant's four-acre parcel had been dedicated to the nonconforming port usage prior to 1969, and that defendant had not expanded its lawful nonconforming use.

Findings of fact by a trial court will not be set [181 MICHAPP 30] aside unless clearly erroneous.MCR 2.613(C).A finding is clearly erroneous when, although supported by the evidence, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.In re Cornet, 422 Mich. 274, 278, 373 N.W.2d 536(1985).

A review of the evidence does not indicate that the circuit court's finding was clearly erroneous.Evidence was presented that the site was leveled and graded in 1980 and 1985 to increase usable storage space on the site.Evidence was also presented which indicated that the entire property had been leased and used for marine dockage and material storage prior to the passage of the ordinance, and that this use was not restricted to certain portions of the property.Evidence established that the amount of land used varied from year to year, depending upon economic conditions and market demand.Plaintiff township presented no conclusive evidence regarding the port's usage in 1969, or that its use in 1985 was greater than the 1969 level.Merely because the site was improved in 1980 and 1985 does not lead to the conclusion that the use would be substantially increased past 1969 levels.

II

The township claims that the circuit court erred by holding that the "green belt" provision in the township zoning ordinance did not apply to defendant's property.We disagree.

In Article VIII of the township's zoning ordinance, under the heading "definitions," the ordinance lists Green Belt Zoning, and defines it as follows:

For the purpose of this actGreen Belt Zoning[181 MICHAPP 31] shall mean that any land abutting on lakes, rivers, or streams shall be so improved so as to maintain at least two thirds of the natural vegetation along the normal high water level and 50 feet distance therefrom.That any dwelling erected thereon shall be located to [sic] that it shall not be less than 50 feet from the normal high water level and any septic tank or drain field shall be so located on the premises that the same shall be at least 100 feet distant from the normal high water level.The normal high water level is determined by the Army Corps of Engineers.

Further reading of the ordinance reveals that the only other reference to Green Belt Zoning is listed under the requirements for properties zoned R-1 Residential District:

Provided further, any land abutting on lakes, rivers or streams, shall also meet the requirements of Green Belt Zoning as defined in Paragraph 8.14.

Defendant's land is zoned Commercial District under the ordinance.Under the sections dealing with Commercial District Properties, there is no reference to Green Belt Zoning.

The ordinance is clear on its face; there is no Green Belt Zoning requirement for properties zoned Commercial District.The circuit court properly found that defendant's land was not constricted by the Green Belt Zoning requirements.

III

The township claims that the circuit court erred by finding the zoning ordinance invalid with regard to defendant's land because the ordinance was improperly exclusionary.We disagree.

A local government entity may not use its zoning ordinance to totally prohibit an otherwise [181 MICHAPP 32] lawful land use from the land contained within its boundaries.M.C.L. Sec. 125.297a;M.S.A. Sec. 5.2963(27a);Kropf v. Sterling Heights, 391 Mich. 139, 155-156; 215 N.W.2d 179(1974).

The circuit judge based his decision upon Sec. 27a of the Township Rural Zoning Act, M.C.L. Sec. 125.297a;M.S.A. Sec. 5.2963(27a), which provides:

A zoning ordinance or zoning decision shall not have the effect of totally prohibiting the establishment...