Lyon Charter Twp. v. Petty, Docket Nos. 327685

• Decision Date: 13 October 2016
• Docket Number: Docket Nos. 327685,327686.
• Citation: 317 Mich.App. 482,896 N.W.2d 477
• Parties: LYON CHARTER TOWNSHIP v. PETTY. Lyon Charter Township v. Hoskins.
• Court: Court of Appeal of Michigan — District of US

317 Mich.App. 482

896 N.W.2d 477

LYON CHARTER TOWNSHIP

v.PETTY.

Lyon Charter Township

v.Hoskins.

Docket Nos. 327685

327686.

Court of Appeals of Michigan.

Submitted Oct. 5, 2016, at Detroit.

Decided Oct. 13, 2016, at 9:00 a.m.

Seglund Gabe Quinn Elowsky & Pawlak, PLC, Wixom (by Jennifer H. Elowsky and Leann K. Kimberlin ), for plaintiff.

Essex Park Law Office, PC, S Lyon (by Dennis B. Dubuc ), for defendants.

Before: FORT HOOD, P.J., and GLEICHER and O'BRIEN, JJ.

PER CURIAM.

The Petty and Hoskins families each own property in Lyon Township, which they use as their primary residences and the sites of their family-owned business operations. Their commercial uses have violated the township's zoning ordinance since they opened shop. As the residential neighborhood developed around them, these uses became problematic, and the township enforced its ordinance by ordering a stop to the business activities. The circuit court, faced with competing summary disposition motions, upheld the township's zoning authority. We affirm.

I. BACKGROUND

The Petty and Hoskins families each own acreage on Belladonna Road in Lyon Township. The land has been zoned R–1.0 Residential Agricultural since 1957. The Hoskins family purchased their five-acre lot in 1969. The land was vacant, and the family quickly constructed a single-family residence. In 1970, the Hoskins family erected a 30–foot by 50–foot pole barn valued at $3,300. Their building permit application indicated, "Building to be used for storage." In 2012 and 2013, the Hoskins family built additions to the pole barn, each valued at $3,500. The Hoskins family asserts that they have always used the pole barn to store equipment and material for their landscaping business: Hoskins Landscaping, formerly known as Paul Hoskins Landscaping.

The Petty family bought a 13–acre lot neighboring the Hoskins family in 1977. The previous owners ran Nunday Trenching and Power Washing Company from the property and stored trucks and commercial equipment on site. The Petty family currently operates a truck-storage facility on the land—Petty Trucking—and also stores materials such as brick pavers. They have conducted other commercial enterprises in the past. Although James Petty contends that his family has made "significant investments" and "improvements to the business," he provided no further detail in connection with this lawsuit.

It is undisputed that the Hoskins and Petty families operated their businesses without township interference for several decades despite that their uses were never permitted under their zoning classification. Defendants claim that township officials have visited their property several times over the years and never raised any concerns. Moreover, each presented commercial personal property tax bills connected with their Belladonna addresses. In the early days, other property owners on Belladonna Road put their land to similar uses. It is also undisputed, however, that the neighborhood's character has changed over time. Satellite images reveal that a large residential subdivision now runs along the properties' western borders. On Belladonna Road, simple farm houses have given way to modern homes of vast square footage on large lots. It appears that Hoskins Landscaping and Petty Trucking are the last local vestiges of the rural era.

Neighbors began complaining about noise and early morning activity at the landscaping and truck-storage businesses. On October 14, 2013, the township sent identical "township zoning ordinance warning notice[s]" to Marlene Hoskins and James Petty. The township advised defendants that their business uses were not permitted in a residential zoning district and that defendants had been in violation of the ordinance since the inception of their commercial enterprises. The notices continued, "Although portions of your business activities have existed for years, the Township would like to meet with you to discuss options available to bring your property into compliance with the Zoning Ordinance." Ultimately, the township sought judicial intervention to force the Hoskins and Petty families to cease their business operations in their current locations. Defendants filed a joint motion for summary disposition contemporaneous with their answers, and the township responded with a summary disposition motion of its own. The circuit court agreed with the township's position and ordered the Pettys' and Hoskinses' compliance with the zoning restrictions on their land. The Pettys and Hoskinses now appeal.

II. STANDARD OF REVIEW

We review de novo a circuit court's grant of summary disposition. Zaher v. Miotke, 300 Mich.App. 132, 139, 832 N.W.2d 266 (2013).

A motion under MCR 2.116(C)(10)"tests the factual support of a plaintiff's claim." Walsh v. Taylor, 263 Mich.App. 618, 621, 689 N.W.2d 506 (2004). "Summary disposition is appropriate ... if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003). "In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial." Walsh, 263 Mich.App. at 621 . "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West, 469 Mich. at 183, 665 N.W.2d 468. [Zaher, 300 Mich.App. at 139–140, 832 N.W.2d 266.]

We review de novo the applicability and merit of the equitable defenses raised by the Hoskins and Petty families. See Mason v. Menominee, 282 Mich.App. 525, 527, 766 N.W.2d 888 (2009).

III. ANALYSIS

Townships have statutory authority to enact and enforce zoning ordinances for the orderly planning of their communities. See Michigan Zoning Enabling Act, MCL 125.3101 et seq. Zoning ordinances must be reasonable and promote "the public health, safety, morals, or general welfare."

Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 71 L.Ed. 303 (1926). Indeed, MCL 125.3201(1) of the Michigan Zoning Enabling Act provides:

A local unit of government may provide by zoning ordinance for the regulation of land development and the establishment of 1 or more districts within its zoning jurisdiction which regulate the use of land and structures to meet the needs of the state's citizens for food, fiber, energy, and other natural resources, places of residence, recreation, industry, trade, service, and other uses of land, to ensure that use of the land is situated in appropriate locations and relationships, to limit the inappropriate overcrowding of land and congestion of population, transportation systems, and other public facilities, to facilitate adequate and efficient provision for transportation systems, sewage disposal, water, energy, education, recreation, and other public service and facility requirements, and to promote public health, safety, and welfare. [Emphasis added.]

To achieve these goals, "[i]t is the policy of this state and a goal of zoning that uses of property not conforming to municipal zoning ordinances be gradually eliminated." Jerome Twp. v. Melchi, 184 Mich.App. 228, 231, 457 N.W.2d 52 (1990). Whether and when to enforce its zoning ordinance to effectuate this gradual elimination is a matter within a township's discretion. 83 Am. Jur. 2d, Zoning and Planning, § 936, p 893 ; Randall v. Delta Charter Twp., 121 Mich.App. 26, 32, 328 N.W.2d 562 (1982) ( "[D]ecisions of a planning commission, or other similar local agency, concerning whether to enforce zoning ordinances are decisions which are so basic to the operation of a municipality that any attempt to create liability with respect thereto would constitute an unacceptable interference with [the municipality's] ability to govern.") (quotation marks and citation omitted; second alteration in original). "[A]bsent extraordinary circumstances," courts will not interfere with such decisions. 2 Cameron, Michigan Real Property Law, § 23.30, p 1367.

One such "extraordinary circumstance[ ]" is the presence of a preexisting "nonconforming use." "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." Heath Twp. v. Sall, 442 Mich. 434, 439, 502 N.W.2d 627 (1993). To be protected, the nonconforming use must have been legal at one time; a use that violates the zoning ordinances since its inception does not draw such protection. 1 Anderson, American Law of Zoning 3d, § 6.14, p 481. Defendants concede that their commercial activities have never conformed to the uses approved for their properties' zoning classification. Accordingly, defendants were required to find other extraordinary circumstances to demand the continuation of their businesses from their R–1.0 Residential Agricultural properties.

In defense of the township's enforcement actions, the Hoskins and Petty families contended that the township's decades-long pattern of ignoring their zoning violations and the investments they made in their businesses as a result, precluded the township from taking enforcement action now. To this end, the Hoskins and Petty families asserted laches and estoppel defenses. These defenses "are judicially disfavored" because they invite judicial interference into an area of local "public interest" and are "rarely applied in the zoning context except in the clearest and most compelling circumstances." 83 Am. Jur. 2d, § 937, p 894. And relevant to both, a historical failure to enforce a particular zoning ordinance, standing alone, is insufficient to preclude enforcement in the present. Anno: Right of Municipality or Other Public Authority to Enforce Zoning or Fire Limit...