Heath Tp. v. Sall

• Decision Date: 14 November 1991
• Docket Number: Docket No. 126375
• Citation: 478 N.W.2d 678,191 Mich.App. 716
• Parties: HEATH TOWNSHIP, a Michigan municipal corporation, Plaintiff-Appellee, v. Gerald W. SALL and Joyce Sall, Defendants-Appellants. 191 Mich.App. 716, 478 N.W.2d 678
• Court: Court of Appeal of Michigan — District of US

Page 678

478 N.W.2d 678

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

Docket No. 126375.

191 Mich.App. 716, 478 N.W.2d 678

Court of Appeals of Michigan.

Submitted June 26, 1991, at Grand Rapids.

Decided Sept. 9, 1991.

Approved for Publication Nov. 14, 1991, at 9:15 a.m.

Released for Publication Feb. 3, 1992.

[191 MICHAPP 717] Bauckham, Sparks, Rolfe & Thomsen, P.C. by John K. Lohrstorfer, Kalamazoo, for plaintiff-appellee.

John A. Watts, Allegan, for defendants-appellants.

Before MURPHY, P.J., and HOLBROOK and SAWYER, JJ.

PER CURIAM.

Defendants appeal from a judgment of the circuit court permanently enjoining them from completing construction and allowing occupancy of a mobile home park under construction on property owned by defendants and located in plaintiff township. We reverse.

In 1985, defendants purchased a parcel of land located in Heath Township with the intention of building a mobile home park on the property. At the time of purchase, the property was zoned R-2, for which mobile home parks were not a permitted use. After purchasing the property, defendants successfully sought from the township a change in the zoning classification of the property to R-3, which allows use for mobile home parks. That rezoning request was granted on October 13, 1986.

After the zoning change was approved, defendants obtained a permit to construct a driveway approach from the county road commission, as well as an earth-change permit from the county and a plumbing permit from plaintiff. Following the rezoning by the township, defendants expended in excess of $16,000 in preliminary site preparation, including the drilling of a permanent five-inch commercial water well to a depth of 184 [191 MICHAPP 718] feet, the installation of four other test wells, the construction of an insulated concrete block wellhouse, the clearing of trees and excavation for roads, including the removal of top soil, and the preparation of a topographical survey. Preliminary plans by defendants' engineer were completed and approved by the appropriate agencies and work was commenced on the final plans.

Local residents, dissatisfied with the zoning change, sought a zoning referendum pursuant to M.C.L. Sec. 125.282; M.S.A. Sec. 5.2963(12). That election was held on February 2, 1987, and resulted in a rejection by the electorate of the zoning change from R-2 to R-3. Defendants, however, continued construction of the mobile home park, believing that they had established a legal prior nonconforming use of the property. Defendants expended approximately $19,000 in additional construction costs. They were approximately one month from completing and opening the first phase of the mobile home park on August 17, 1987 when plaintiff's attorneys notified defendants that they were in violation of the zoning ordinance and should stop construction. Plaintiff filed this action against defendants on August 26, 1987, and the circuit court issued a temporary restraining order that later became a preliminary injunction against the occupancy of the mobile home park, but permitted defendants to continue construction at their own risk. Following a subsequent hearing, the circuit court made its injunction permanent.

Defendants raise a number of issues on appeal, one of which is dispositive. Defendants argue that they acquired vested rights to a nonconforming use through their actions before the referendum and that the change of the zoning back to R-2 pursuant to the referendum therefore should not apply. We agree.

[191 MICHAPP 719] A zoning ordinance that is otherwise reasonable and valid may not operate to divest a property owner of the right to use the property in the manner it was used before the adoption of the zoning ordinance. Gackler Land Co., Inc. v. Yankee Springs Twp., 427 Mich. 562, 573-574, 398 N.W.2d 393 (1986). To constitute such a prior nonconforming use, there must be work of a substantial character done for the preparation of the actual use of the premises. Id. at 574, 398...