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Does a nonconforming use run with the land and transfer to a subsequent owner who buys a property?

Generally, yes. The Michigan Zoning Enabling Act codified the principle of lawful nonconforming uses in MCL 125.3208. The Act provides: “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.” Under this Section, a nonconforming use is permitted to continue after adoption of a zoning ordinance or an amendment. This Section is based upon case law, which also provides that the nonconforming use would generally run with the land, not a single individual or family.

The MZEA also addresses the scope of regulation that a local municipality may apply by indicating that a zoning ordinance may provide “for the completion, resumption, restoration, reconstruction, extension, or substitution of nonconforming uses or structures.” This means that although a nonconforming use may continue, the local zoning body can provide for regulations, such as whether the nonconforming use would end after a certain period of abandonment, or whether the use can be expanded. In the latter scenario, many zoning ordinances provide such expansions as long as such requests are reviewed and granted by the zoning board of appeals.

Importantly, local units will want to make sure their zoning ordinance provisions comply with Section 208 of the MZEA. Buyers of property will also want to verify during due diligence that the use on the land is a nonconforming use under the zoning ordinance. If so, it is important to understand that a completely different set of provisions may apply to alteration, expansion, or continuing such uses which are different, and often more restrictive, than a lawful conforming use.

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