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At the start of the year, our E-Letter examined five significant court decisions from 2025 addressing warrantless code enforcement inspections, Right to Farm Act preemption, vested rights in unlawfully issued permits, the distinction between “rezoning” and “amending” for notice purposes, and the presumptive validity of legislative rezoning decisions. You can read Part I here. This Part II continues that review with five cases from 2025 that focus on the nonconforming use doctrine, laches and zoning estoppel that may have a notable impact on townships and municipalities in Michigan.

Nonconforming Uses Generally

The doctrine of nonconforming uses provides that a lawful use of property that existed before a zoning ordinance was enacted may continue even though the use no longer conforms to current zoning regulations. This is distinct from nonconforming structures, which involve physical buildings or structures that do not meet current dimensional requirements (such as setbacks, height, or lot coverage) but were lawfully constructed before those requirements were adopted. For a use to qualify as a lawful nonconforming use, the property owner must generally establish that: (1) the use existed before the zoning regulation’s effective date; (2) the use was lawful at that time; and (3) the use has been continuous and has not been abandoned.

Lawful Nonconforming Uses Must Be Reviewed Based on the Specific Facts of Each Case

In Green Oak Charter Township v. DD&G Holdings, LLC, (Case No. 368903, Sept. 15, 2025), the Michigan Court of Appeals addressed lawful nonconforming uses and the attendant burdens of proof that attach when that defense is asserted. In this case, property located in the Township was purchased in 2008 by several corporate entities, which began operating a greenhouse and landscape supply center and a landscape design and maintenance company. On the property, the owners also accumulated junk vehicles, landscaping materials, and other debris for outdoor storage. Under the Township’s zoning ordinance, the property was zoned residential farming, which provided for uses such as low-density single-family residential development, agriculture, and other compatible uses.

Beginning in 2014, the Township regularly sent warnings and citations for violations. In October 2018, the Township filed a complaint alleging that the property was operated as a nuisance per se because it violated at least fifteen different zoning ordinance provisions, including that the landscape business and outdoor storage were not permitted uses in the residential farming zoning district, there was insufficient lot size for a greenhouse (greenhouses required properties of 10 acres or more, but this property was only 5.03 acres), and various other violations related to permits, setbacks, lot coverage, parking surfaces, and accumulated debris.

The trial court entered judgment in favor of the Township and the Court of Appeals. The Township presented evidence that the zoning ordinance was enacted in 1967 and that the property at issue had been continuously zoned as residential farming, which never permitted landscaping businesses or outdoor storage. The Township supported its position through testimony, photographs, and aerial images showing the property’s gradual expansion over time. As such, the court found that the Township carried its burden of proof to establish the ordinance violations at issue, which shifted the burden to Defendants to provide evidence that their use was lawfully nonconforming. Defendants presented only a conclusory affidavit without factual detail that the use was lawful, which the court deemed insufficient. The court noted that Defendants bought the property in 2008 and “developed [the] business . . . at their own risk.”

This case is a helpful reminder for municipalities considering how to pursue use and other related zoning violations to consider whether the nonconforming use doctrine will apply. Municipalities should be prepared to present specific evidence establishing: (1) when the zoning ordinance was enacted; (2) what uses have been permitted in the applicable district since enactment; and (3) specific evidence of the violations. Courts regularly find photographs, parcel overviews, and annotated drawings helpful in discerning the zoning ordinance violations and evaluating historical use.

Municipalities should also consider that property owners claiming nonconforming use status will be required by courts to present specific factual evidence that the use was lawful and existed before the zoning regulation. Thus, instead of waiting for such evidence at a hearing, municipal officials should navigate those claims by asking property owners for proof of a nonconforming use before taking formal enforcement action. Such steps will mitigate against unnecessary use of resources by all involved.

Nonconforming Use and Laches Must Be Clearly Raised by the Property Owners

The nonconforming use doctrine came up a second time last year when the Michigan Court of Appeals addressed the obligation for property owners to raise whether they have a lawful nonconforming use or otherwise want to claim laches as defenses in zoning enforcement cases. Laches is an equitable defense that bars a claim when there has been an unreasonable delay in bringing the claim and the delay has caused prejudice to the defendant. In the zoning context, a property owner might assert laches where a municipality waited too long to enforce the ordinance. This is different from the nonconforming use doctrine, which is based on the timing of when the use began relative to when the ordinance was enacted. However, the two can be related because both involve questions of timing and historical use of property. Municipalities often see these raised together (as well as zoning estoppel) when seeking enforcement against activity that has been occurring on a property for an extended period of time.

In Township of Imlay v. Schutte (Case No. 367304, May 21, 2025), Defendant owned and bred sheepdogs and sought to purchase land in the Township. Before purchasing the property, the Supervisor told Defendant’s real estate salesperson that there were no limits on dog ownership. Defendant purchased the property and moved in with her dogs in 2003, regularly licensing them with the county.

In 2016, Defendant was keeping nearly forty dogs on the property. Animal control indicated a county-issued kennel license would be appropriate, which required Township approval. The Township Planning Commission discussed the request at three separate meetings in 2016. Defendant claims an agreement was reached at a Planning Commission meeting to reduce the number of dogs to at most twenty within ten years, but nothing was recorded in the meeting minutes.

In 2022, the Township notified Defendant that she was operating an unlawful dog kennel without zoning approval and filed suit to seek compliance with the Township zoning ordinance. Defendant asserted the Township was breaching the alleged 2016 agreement. She sought dismissal of the case, arguing primarily that the zoning ordinance was enacted in 2009 and she had possessed over four dogs since 2003, making her use a lawful nonconforming use. She also contended laches barred the claim, because the Township could have sought enforcement in 2009. The court did not evaluate the merits of either defense, however, because Defendant did not assert laches or nonconforming use as affirmative defenses in her answer to the Township’s complaint.

The Court treated Defendants’ reference to the agreement as asserting another affirmative defense, the defense of zoning estoppel. Zoning estoppel also arises in zoning enforcement cases, but is often overstated. Importantly, it is a rare and narrow exception against a property owner’s obligation to comply with zoning. With respect to the alleged agreement, the Court determined that, even if the 2016 meeting involved a request or agreement that Defendant reduce the number of dogs, she only met with the Planning Commission, and there was no basis to show the Planning Commission could bind the Township in such a manner. Additionally, the meeting minutes did not reflect any agreement. The court concluded there was merely a request by one Planning Commission member without any vote or proof of a binding agreement, and that zoning estoppel only applies in truly exceptional circumstances, which were not present here. The rejection of this defense reflects the high bar for zoning estoppel, where Township supervisor comments and discussions with a Planning Commission that result in an alleged agreement were still not sufficient to formally authorize the land use and bind the Township.

This case reiterates that the nonconforming lawful use doctrine regularly shows up in zoning enforcement cases because many Michigan municipalities have adopted zoning in the past 40-50 years (some even in the past 20 years). As a result, the doctrine can apply and permit uses to continue so long as they were conducted lawfully before the ordinance was enacted. If there is a nonconforming use occurring on the property, that can often complicate determining which uses on a property may be lawful or otherwise exceed that prior lawful status.

This case also highlights the importance of meeting minutes and resolutions related to land use approvals. Municipalities should ensure meeting minutes, resolutions, and related records accurately reflect what occurred. Zoning approvals run with the land. It is important that the historical records can be easily discerned by successive officials and staff who may be responsible for determining code compliance in the future.

Structure or Use Changes that May Constitute Continuation of Nonconforming Uses

One reoccurring issue is expansion and alterations to nonconforming structures and nonconforming uses. In Pierce v. Nye (Case No. 368883, June 24, 2025), the Michigan Court of Appeals addressed the distinction between permissible “continuation” and prohibited “expansion” of a prior nonconforming use. In this case, the dispute centered on a shooting range that was a nonconforming use. When the property owner upgraded the sporting clays course on the east side of the property (including replacing old throwers with new portable ones, adding shooting stations, removing some trees, and adding walkways), neighboring property owners claimed these changes constituted an unlawful expansion.

An individual purchased land for a shooting range in the Township in 1965. The range opened around 1973. The Township adopted its first zoning ordinance in 1979. Under the zoning ordinance, the land was zoned agricultural and shooting ranges were not a permitted use. In 2008, the Township amended its ordinance, which allowed shooting ranges by special use permit. At some point, however, the Township Board determined the range to be a lawful nonconforming use.

From 1975 to 2021, approximately ten percent of trap shooting took place on the east side of the property. In Spring 2021, after upgrading the east side for safety reasons, adjacent property owners noticed louder and more frequent shooting activity. The adjacent property owners filed suit in June 2021, seeking to shut down the alleged expanded use of Defendant’s shooting range. The trial court rejected Plaintiffs’ nuisance per se claims, determining that the sport shooting had occurred since the 1970s on the entire property and continued to the present. This meant the use predated the 1979 ordinance and was therefore protected as a prior lawful nonconforming use. The Court of Appeals affirmed.

A continuation of the lawful nonconforming use is permissible, but it must be of “substantially the same size and essential nature” and is “restricted to the area nonconforming at the time the ordinance was enacted.” The court found the upgrades on the east side were not an unlawful extension or enlargement. Shooting had occurred on the east side since the 1970s. In the 1990s, a mechanical launcher was built for clay shooting. In 2021, it was upgraded for safety reasons: old throwers were replaced with new, portable ones, some trees were removed, and walkways were added. The structures associated with the shooting stations were deemed incidental to the use. Because the use and intensity itself (sport shooting) remained the same and had occurred on the east side of the property since the 1970s, the upgrades related to how the nonconforming use was conducted, not whether the use had expanded into new areas. Critically, the court noted that “the style of shooting remained the same.”

The facts of this case demonstrate how fact-intensive lawful continuation versus unlawful expansion of nonconforming uses can be. Municipalities must be diligent in assessing whether any changes to a nonconforming use would cause it to fall outside of its protected status based on the municipalities’ specific nonconforming lawful use provisions. Here, the court noted that the use remained of substantially the same size and essential nature, and thus no expansion occurred. This is why municipalities should document the scope of nonconforming uses as thoroughly as possible when they become aware of them, including the specific areas used, intensity of use, and nature of operations. This creates a baseline for evaluating future claims of expansion.

Nonconforming Use Doctrine Applies Only to Zoning Ordinances

Similar to rulings from Michigan’s appellate courts, the Sixth Circuit recently explained that the nonconforming use doctrine discussed above only applies to zoning ordinances. The building code, fire code, and other municipal ordinances are not subject to the doctrine. Lathfield Investments, LLC v. City of Lathrup Village, 136 F.4th 282 (6th Cir. 2025) focused on numerous building code violations preexisting the current owner. In this case, the city had issued notices and citations to the previous owner regarding the code violations when the property was sold to a new owner. When the city withheld various licenses and approvals to the current owner due to code violations, the current owner sued the city, alleging, among other things, that the property was a lawful nonconforming use.

The Sixth Circuit rejected the current owner’s arguments. Relevant for this E-Letter, the owner argued that the nonconforming use doctrine should protect it from having to remedy the building code violations that existed when it purchased the property. The court disagreed. The court explained that a prior nonconforming use is permissible if it exists before a zoning regulation’s effective date. Plaintiff had not established a property interest that was deprived because Plaintiff had not proven the property was ever operated as a “lawful use,” nor had Plaintiff applied for a required building permit. The court also emphasized that “nonconformity use doctrine . . . is only appropriate for zoning regulations” and was inapplicable to building code violations.

Municipalities are reminded that building code, fire code, and similar regulatory violations may be enforced regardless of how long the property has been out of compliance. The nonconforming use doctrine provides no protection against such enforcement. Property owners who purchase a property with pre-existing violations are not immune from compliance and remain responsible for correcting those violations. Interestingly, the Court did take note of the City’s repeated evidence of intent to enforce over time, including violation notices, citations, and communications of the same, which the Court relied upon to defeat the owner’s assertion of laches. Such findings suggest municipalities are benefited by maintaining enforcement records and documentation regarding compliance efforts even when immediate compliance is not achieved.

Conclusion

The cases examined in Part II demonstrate the continued application of the nonconforming use doctrine in Michigan cases. From evidentiary burdens for claiming nonconforming status to the procedural requirements for asserting defenses, courts continue to reaffirm the longstanding nonconforming use doctrine and its limits on expansions of such uses. While presenting difficulty for enforcing municipalities, these cases underscore the fact-intensive nature of a nonconforming use analysis, and how such issues have to be reviewed with the historical context of when applicable zoning ordinance regulations are enacted in relation to when uses are commenced. Municipalities should also be careful not to immediately jump to conclusions that no changes to a nonconforming use are permissible. As the Pierce case makes clear, the text of the zoning ordinance may well permit replacements and upgrades without impacting the protected status. Zoning administrators will need to pay careful attention to the specific text in the zoning ordinance. And it remains worth repeating that the nonconforming use doctrine applies only to zoning regulations, and not to building code, fire code, or other municipal regulatory violations.

Together with Part I, this E-Letter provides an overview of the nonconforming use doctrine from significant zoning and land use decisions in 2025. It is important to stay up to date on recent developments in Michigan law and consider how those changes may impact zoning ordinances, zoning practices, and enforcement in your municipality.

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.