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If a township adopts a new zoning ordinance or amends its current zoning ordinance, how does that create a nonconforming use?

If a township adopts a new zoning ordinance or amends its current zoning ordinance, how does that create a nonconforming use?

Legally existing uses of land prior to a new or amended zoning ordinance that are not in compliance are considered to be nonconforming uses. A nonconforming use is a vested right in the use of particular property that is protected because it lawfully existed prior to the new or amended zoning ordinance. Common parlance has coined this as being “grandfathered-in.” Under most circumstances, the existing use will continue to exist and not need to meet the new requirements of the zoning ordinance.

This raises the question of when does an existing use become protected from new or amended zoning ordinances. Michigan law provides that a vested right in the existing use of a property (i.e., nonconforming use) occurs when substantial physical construction needed for that use has begun. Preliminary work—such as ordering plans, surveying the land, and removal of old buildings—or even the significant expenditure of money are not sufficient to create a vested right to a particular use. The issuance of a permit or rezoning by itself will not create vested rights. 

The Michigan Zoning Enabling Act expressly recognizes nonconforming uses in MCL 125.3208(1): “If the use of a dwelling, building, or structure or of the land is lawful at the time of enactment of a zoning ordinance or an amendment to a zoning ordinance, then that use may be continued although the use does not conform to the zoning ordinance or amendment.” Nonconforming uses run with the land; the sale or lease of property to another will not prohibit the existing use.

Whether a property is a nonconforming use is factually dependent and often decided by the courts. This can occur when a township attempts to enforce its amended zoning ordinance regulations. For example, the Court of Appeals recently addressed an issue where a property owner used property for commercial purposes since the 1980s. The township involved, however, had adopted a zoning ordinance as early as the 1950s. Under the township zoning ordinance, the property was classified in a land use district that did not permit commercial use (either before or after amendments). In 2011, the township enforced the zoning ordinance to prohibit the commercial use by the property owner. The Court determined that the commercial use of the property for over 20 years must cease. Even though the commercial use started in the 1980s, it was an illegal use under the zoning ordinance then. The property owner had to show legal commercial use of the property prior to when the zoning ordinance took effect. (Macomb Twp v Svinte, Michigan Court of Appeals (2014)).

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