Independence Tp. v. Eghigian

• Decision Date: 19 August 1987
• Docket Number: Docket No. 92557
• Citation: Independence Tp. v. Eghigian, 409 N.W.2d 743, 161 Mich.App. 110 (Mich. App. 1987)
• Parties: INDEPENDENCE TOWNSHIP, Plaintiff-Appellee and Cross-Appellant, v. Michael EGHIGIAN and Kerry L. Eghigian, Defendants-Appellants and Cross-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 743

409 N.W.2d 743

161 Mich.App. 110

INDEPENDENCE TOWNSHIP, Plaintiff-Appellee and Cross-Appellant, v. Michael EGHIGIAN and Kerry L. Eghigian Defendants-Appellants and Cross-Appellees.

Docket No. 92557.

Court of Appeals of Michigan.

Submitted Feb. 12, 1987.

Decided April 29, 1987.

Released for Publication Aug. 19, 1987.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton by Gerald A. Fisher, Farmington Hills, for plaintiff-appellee and cross-appellant.

Michael S. Freud, Troy, for defendants-appellants and cross-appellees.

Before DANHOF, C.J., and WEAVER and BATZER, JJ.

PER CURIAM.

Defendant appeals and plaintiff cross appeals from an order of summary disposition entered by the Oakland Circuit Court on April 30, 1986. The instant suit concerns efforts of plaintiff township to prevent defendants from parking a dump truck in the driveway of their home. Defendants' residence is located in an R-1A single-family residential district.

Defendants have lived in plaintiff township since 1969 at their current address. Beginning in 1971, defendants began parking a 1967 Ford dump truck, weighing 17,000 pounds, in their driveway. Defendants performed routine maintenance at their residence during the years that the truck had been parked there. One issue on appeal is whether the parking and maintenance of the 1967 vehicle was in violation of Township Ordinance 51, which was in effect prior to 1975. In 1975, Ordinance 51 was repealed and replaced by Ordinance 83. Ordinance 83 limits commercial parking in residential areas to trucks weighing less than 10,000 pounds. In 1975, subsequent to the effective date of Ordinance 83, defendants sold their 1967 Ford dump truck and replaced it with a dump truck weighing 27,000 pounds. Some time in 1977, defendants also began parking a trailer "pup" at their home, which they used in conjunction with the dump truck.

After various other attempts to prevent defendants from parking the dump truck and the pup on their property, plaintiff township instituted the instant complaint in 1985, alleging various claims of nuisance and requesting injunctive relief. Both parties filed motions for summary disposition pursuant to MCR 2.116(C)(10). Oral argument was heard on March 24, 1986, at which time the trial court partially granted both motions in an apparent resolution of the entire action. However, the parties could not agree upon the proposed judgment. On April 30, 1986, a hearing was conducted to settle the judgment. After the hearing was conducted, the judgment was entered immediately. It held that Ordinance 51 did not prohibit the parking of the dump truck and thus that defendants possessed the right to continue their prior use, which had become nonconforming after the enactment of Ordinance 83. The judgment also provided that parking of the newer heavier truck did not constitute an unlawful extension of defendants' vested, nonconforming use. However, the parking of the trailer pup was enjoined and the hours during which defendants could perform maintenance upon the dump truck were limited. Both parties appeal, raising several issues.

The first issue we address is plaintiff's contention that the trial court erred by denying plaintiff's motion for summary disposition on the basis of nuisance per se. Under M.C.L. Sec. 125.294; M.S.A. Sec. 5.2963(24) a use of land which is in violation of a local ordinance is a nuisance per se. Under M.C.L. Sec. 125.286; M.S.A. Sec. 5.2963(16), a use which is lawful at the time of the enactment of an ordinance may be continued even if the use is nonconforming under the new ordinance. Plaintiff argues that the parking did not constitute a lawful use under the prior ordinance and thus does not qualify pursuant to M.C.L. Sec. 125.286; M.S.A. Sec. 5.2963(16) as a lawful, nonconforming use under the current ordinance.

Section 9.2 of Ordinance 51 provided:

"In residential zones it shall be illegal to garage or park more than one commercial vehicle larger than a regularly manufactured pickup or panel truck of one and one-half ton capacity per lot, said commercial vehicle must be owned and operated by a member of the family residing on said lot or parcel."

Plaintiff argues that this section does not expressly authorize the parking of defendants' dump truck, that this provision refers to commercial vehicles and defendants' truck is an industrial vehicle, that the provision is at least ambiguous, and that consequently the ordinance should be viewed as a whole and construed in a manner so as to effect its overall intent. Plaintiff points to the statement of intent which prefaces the ordinance which states that Ordinance 51 was enacted to encourage a suitable environment for families and to create a neighborhood environment. The provision also provides that "commercial and other uses, tending to be incompatible with the intent, are prohibited."

For several reasons, we are not persuaded by plaintiff's argument. While plaintiff contends that Sec. 9.2 of Ordinance 51 should be construed in accordance with its overall intent, plaintiff admitted in its complaint that the parking of defendants' truck was not in "technical violation" of Ordinance 51. Moreover, even though the grant of authority is by implication, we find that Sec. 9.2 unambiguously permitted the parking of one commercial vehicle. Plaintiff's assertion that defendants' truck is an industrial vehicle and not a commercial vehicle is belied by Sec. 5.08.02 of newly-enacted Ordinance 83. Section 5.08.02 is the section which plaintiff asserts now expressly prohibits the parking of vehicles such as defendants' in residential districts. This section employs the term "commercial vehicles" and mentions nothing of "industrial vehicles." Thus, plaintiff's position would require us to conclude that the dump truck was an industrial, not commercial, vehicle under former Ordinance 51 but a commercial vehicle under Ordinance 83. There is nothing in either ordinance which would support such inconsistent definitions or indicate that the terms are not to be defined according to their common, everyday usage.

Plaintiff also argues that even if defendants' prior use is found to be lawful, defendants' purchase of a larger truck after the effective date of Ordinance 83 was an unlawful extension of the nonconforming use. Plaintiff points out that defendants' prior truck had three axles while the current truck has four axles and that the prior truck weighed 17,000 pounds with a weight capacity of 48,000 pounds while the current truck weighs 27,000 pounds with a 57,000-pound capacity.

M.C.L. Sec. 125.286(2); M.S.A. Sec. 5.2963(16)(2) provides in pertinent part:

"The township board shall provide in a zoning ordinance for the completion, restoration, reconstruction, extension, or substitution of nonconforming uses upon reasonable terms set forth in the zoning ordinance. In establishing terms for the completion, restoration, reconstruction, extension, or substitution of nonconforming uses different classes of nonconforming uses may be established in the ordinance with different requirements applicable to each class."

In Norton Shores v. Carr, 81 Mich.App. 715, 720, 265 N.W.2d 802 (1978), lv. den. 403 Mich. 812 (1978), this Court stated:

" 'It is the law of Michigan that the continuation of a nonconforming use must be substantially of the same size and same essential nature as the use at the time of passage...