Heath Tp. v. Sall

• Decision Date: 01 January 1993
• Docket Number: No. 92479,No. 3,92479,3
• Citation: 502 N.W.2d 627,442 Mich. 434
• Parties: HEATH TOWNSHIP, a Michigan municipal corporation, Plaintiff, v. Gerald W. SALL and Joyce Sall, Defendants. Calendar,
• Court: Michigan Supreme Court

Page 627

502 N.W.2d 627

442 Mich. 434

HEATH TOWNSHIP, a Michigan municipal corporation, Plaintiff, v. Gerald W. SALL and Joyce Sall, Defendants.

No. 92479.

Calendar No. 3, Jan. Term, 1993.

Supreme Court of Michigan.

Argued Jan. 12, 1993.

Decided June 22, 1993.

[442 Mich. 435] John K. Lohrstorfer, Kalamazoo, for plaintiff-appellant.

John A. Watts, Allegan, for defendant-appellee.

OPINION

MALLETT, Justice.

We granted leave to determine whether defendants established a prior nonconforming use of their property as a mobile home park before passage of a referendum rejecting defendants' rezoning proposal. The Court of Appeals answered affirmatively. We hold that defendants failed to prove the requisite tangible change in the property to establish a prior nonconforming use.

I

In 1985, defendants Gerald and Joyce Sall purchased approximately 16 acres of land in Heath Township with the intention of building a mobile home park on the property. ¹ On the purchase date, the land was zoned R-2 (single-family residential zone) within which mobile home parks were not permitted. On October 13, 1986, however, the township board granted defendants' request to rezone the property to R-3 (multiple-family residential). Subsequently, the residents, opposed to the zoning change, petitioned for a referendum pursuant to M.C.L. § 125.282; M.S.A. § 5.2963(12). ² On February 2, 1987, local residents voted to return the property to its original single-family residential classification. However, during the time between the board's vote and the referendum, defendants spent approximately $18,000 preparing the site for construction. The work included developing detailed construction plans, procuring several local permits for future excavating and plumbing, purchasing sewer pipe, drilling a water well, constructing a wellhouse, installing four test wells, excavating for roads, removing topsoil, clearing trees, and obtaining a topographical survey.

Before the referendum, defendants filed an application with the state for a mobile home park license. Their initial application was returned with a request for additional information. In April 1987, defendants resubmitted the application after the unfavorable referendum vote. In late July, 1987, the state orally notified defendants and plaintiff that it intended to issue a mobile home park permit to the defendants. ³ At this point, defendants began further construction. ⁴ On August 17, 1987, the township wrote a letter to defendants insisting that they stop constructing the mobile home park. After defendants refused, the township filed an action for injunctive relief.

The Allegan Circuit Court enjoined defendants from occupancy, but allowed construction "at their own risk." Relying on Gackler Land Co., Inc. v. Yankee Springs Twp, 427 Mich. 562, 398 N.W.2d 393 (1986), the trial court held that defendants' actions before the referendum were insufficient preliminary operations that did not establish a prior nonconforming use. Accordingly, the court opined that the referendum zoning controlled, and that use of the property as a mobile home park would violate the zoning ordinance. Ultimately, on February 8, 1990, the trial court granted the township a permanent injunction.

The Court of Appeals reversed the trial court's decision, stating:

"In the case at bar, we agree with defendants that they took sufficient action toward changing the character of the land while the zoning permitted construction of a mobile home park on the parcel so as to grant the defendants vested rights and create a prior nonconforming use of the property as a mobile home park before the electorate's decision to return the zoning to R-2. Specifically, while the preparation of the survey and site plans and the clearing of trees and debris would not be sufficient to create a prior nonconforming use, defendants' conduct went beyond mere preparation for a change in use of the property. They installed a commercial water well, drilled four additional test wells, constructed a wellhouse, and excavated for the construction of roads for the mobile home park. We are satisfied that this action constitutes a tangible change in the land by excavation and construction that goes beyond mere preliminary operations to establish the nonconforming use." 191 Mich.App. 716, 719-720, 478 N.W.2d 678 (1991).

Plaintiff Heath Township appeals the Court of Appeals decision granting defendants vested rights sufficient to create a prior nonconforming use of the property as a mobile home park. We reverse.

II

A prior nonconforming use is a vested right in the use of particular property that does not conform to zoning restrictions, but is protected because it lawfully existed before the zoning regulation's effective date. Dusdal v. City of Warren 387 Mich. 354, 359-360, 196 N.W.2d 778 (1972). In other words, it is a lawful use that existed before the restriction, and therefore continues after the zoning regulation's enactment. Generally, to establish a prior nonconforming use, a property owner must engage in "work of a 'substantial character' done by way of preparation for an actual use of the premises." Bloomfield Twp. v. Beardslee, 349 Mich. 296, 307, 84 N.W.2d 537 (1957). Once a nonconforming use is established, a subsequently enacted zoning restriction, although reasonable, will not divest the property owner of the vested right. Dusdal, supra. Thus, a prior nonconforming use is an exception to zoning's general principle that certain uses should be confined to certain localities. ⁵

This Court recently examined the standard for establishing a nonconforming use in Gackler, supra. There the plaintiff platted approximately twenty acres of a 103-acre plat consisting of fifty-four lots. The zoning permitted mobile, prefabricated and site-built homes. After the township approved the plat, restrictions were implemented excluding mobile homes from twelve lakefront lots on the site. Later, the township enacted a zoning ordinance restricting mobile homes to mobile home parks. At this time, eleven single-wide mobile homes occupied the restricted lots. The township amended the ordinance to permit mobile homes meeting the definition of "dwelling" in any zoning classification where site-built or modular single-family residences were permitted. The effect of the ordinance was to exclude single-wide mobile homes from the plaintiff's lots unless they met the definition of dwelling. Among other challenges, the plaintiff contended that he established a prior nonconforming use as a single-wide mobile home plat by constructing a road, surveying the plat, erecting monuments, completing grading and excavation work, and installing eleven mobile homes.

In holding that the plaintiff failed to establish a nonconforming use, we stated that

" 'there must be work of a "substantial character" done by way of preparation for an actual use of the premises.' Bloomfield Twp v Beardslee, 349 Mich 296, 307; 84 NW2d 537 (1957). The actual use which is nonconforming must be apparent and manifested by a tangible change in the land, as opposed to intended or contemplated by the property owner. In this regard, preliminary operations such as ordering plans, surveying the land, and the removal of old buildings are insufficient to establish a nonconforming use. [Citations omitted.] The test in each case is not whether a little or a lot has been spent in reliance upon the past zoning classifications, but, rather, ' "whether there has been any tangible change in the land itself by excavation and construction." ' " Id., 427 Mich. at 574-575, 398 N.W.2d 393.

Applying these legal standards to the facts, we held that because the improvements only made the lots equally suitable for single-wide mobile homes and conventional dwellings, they did not constitute "work of a substantial character which makes apparent an actual use of the plat as a single-wide mobile home plat." Id. at 576, 398 N.W.2d 393. Thus, to constitute a legally cognizable nonconforming use, work of a substantial nature beyond mere preparation must materially and objectively change the land itself.

III

The zoning restriction's enactment date is the critical point in determining when a nonconforming use vests. Dingeman Advertising, Inc. v. Algoma Twp, 393 Mich. 89, 223 N.W.2d 689 (1974). ⁶ Construction undertaken after the zoning regulation's enactment is inapposite to determining whether a property owner tangibly changed the land. To hold otherwise would encourage noncompliance with the regulation and disparage the import and effect of a referendum. ⁷ In the instant case, defendants understood as early as October 13, 1986, that a referendum was possible, if not likely. In fact, less than one month later, they knew that petitions were being circulated to initiate a referendum. Nonetheless, defendants decided to proceed with the construction of their proposed mobile home park. On February 2, defendants learned that the referendum passed, returning the property to its original R-2 classification. Accordingly, only construction between October 13, 1986, and February 2, 1987, the date the referendum invalidated the R-3 zoning, is germane to the current inquiry.

Defendants posit that they established a vested nonconforming use as a mobile home park before February 2, 1987, by (1) obtaining a topographical survey, (2) clearing trees and removing topsoil, (3) installing four test wells, (4) excavating roads, (5) drilling a commercial water well, and (6) building a wellhouse. An independent examination of each activity is necessary.

First, obtaining a topographical survey ⁸ of the property is a classic example of an insufficient preparatory operation. In fact, in Gackler, supra, we expressly denounced "surveying the land" as a preliminary operation. Id., 427 Mich. at 575, 398 N.W.2d 393. In City of Lansing v. Dawley, 247 Mich. 394, 397, 225 N.W. 500 (1929), this Court stated that "[defendant] did nothing of a substantial...