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How can townships regulate grandfathered (nonconforming) land uses?

Townships revising their zoning ordinance often face the dilemma of creating nonconforming land uses. In common parlance, many use the term “grandfathered” uses. It is important to note that the Michigan Zoning Enabling Act does address these situations See MCL 125.3208. The Michigan Zoning Enabling Act protects a property owner’s right to continue to operate his or her nonconforming use. Thus, the use is considered lawful, despite not conforming to the provisions of the most recently enacted zoning ordinance. The nonconforming use status “run with the land,” meaning that subsequent purchasers of the land retain the same right to continue operation of the lawful nonconforming use. MCL 125.3208(1); see also Civic Assoc v Horowitz, Michigan Supreme Court 1947. In addition to the status provided under the Zoning Act, there are other various legal precedents that prohibit a township from eliminating all nonconforming uses by zoning ordinance. Austin v Older, Michigan Supreme Court (1938); Central Advertising Co v City of Ann Arbor, Michigan Court of Appeals (1972).

Despite the protections given to nonconforming uses, Michigan courts recognize that the ultimate goal is to eliminate these uses and have all uses conform to the current zoning ordinance regulations. Commonly, the uses continue with their lawful nonconforming status until a land owner stops or abandons such use. Zoning ordinances can define when this event occurs, such as determining that abandonment or discontinuation of the use occurred after not using the property for six (6) months. City of St. Clair Shores v Andler, Michigan Court of Appeals (2002). Nonconforming uses are generally prohibited from expanding. But, as provided in the Zoning Act, expansion of nonconforming uses can and should be addressed in the zoning ordinance. Townships can adopt provisions prohibiting any expansion or allowing any expansion. Expansion can even be subject to certain criteria and approval of the township.

As a reminder, a lawful nonconforming use is not shielded from other ordinances adopted by a township under its police power ordinances. For instance, although a gravel pit may be a nonconforming use, a non-zoning ordinance requiring certain noise or dust emission controls would still be enforceable. See In Natural Aggregates Corp v Brighton Twp, Michigan Court of Appeals (1995).

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