James D Azzar v. City of MacKinac Island
331308
| Mich. Ct. App. | May 23, 2017Background
- D and S (formerly Lanisplace) owns the Beaver Dock waterfront parcel in the City of Mackinac Island, zoned R-1 (residential). The dock has historically been used for commercial freight serving Mission Point Resort and is treated as a grandfathered nonconforming commercial use.
- Plaintiff owns adjacent residential property and sued to enjoin alleged expansions of the nonconforming use (storage of refuse/construction material; use of motor vehicles; use of a "loop road").
- City in 1991 acknowledged the dock’s nonconforming use for hauling freight and occasional loading/unloading, without geographic or quantity limits.
- In 2014 the City entered a time-limited licensing agreement with Mission Point to allow public freight use of the Beaver Dock (later briefly extended); plaintiff sought to enjoin that use.
- Trial court denied preliminary injunction and granted summary disposition for both defendants; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are plaintiff's claims against the City moot regarding the 2014 licensing agreement? | The City illegally expanded the nonconforming use by permitting public commercial freight during the license period. | The license expired and was not renewed; there is no ongoing controversy or prospective City action. | Moot — license expired; no meaningful relief; recurrence not shown. |
| Did D and S impermissibly expand the prior nonconforming commercial dock use by using a "loop road" or lot 41? | Use of the loop road/west portion and lot 41 constitutes an unlawful expansion beyond the historical nonconforming area. | Entire parcel historically used for commercial transfer; nonconforming use is the dock operation (not a specific access strip); use of lot 41 and loop road was within historic use. | No expansion shown; summary disposition for D and S affirmed. |
| Were nuisance claims based on debris and storage moot or resolved? | Debris/storage continued to be a nuisance requiring abatement. | City and Lanisplace resolved debris/storage issues; matter changed. | Claims moot to extent they related to resolved debris/storage. |
| Was plaintiff’s motor-vehicle-permit claim preserved and argued on appeal? | Alleged unpermitted vehicle use (tractor) violated ordinance. | Current owner appears to have permit; plaintiff did not argue on appeal. | Not addressed on appeal; likely moot and waived. |
Key Cases Cited
- People v. Richmond, 486 Mich 29 (2010) (courts will not decide moot issues; exception for matters likely to recur but evade review)
- Thomas M. Cooley Law Sch. v. Doe 1, 300 Mich App 245 (2013) (mootness reviewed de novo)
- Century Cellunet of Southern Mich. Cellular, Ltd. P’ship v. Summit Twp., 250 Mich App 543 (2002) (zoning goal: gradual elimination of nonconforming uses)
- Gackler Land Co., Inc. v. Yankee Springs Twp., 427 Mich 562 (1986) (prior nonconforming use is a vested right protected from zoning ouster)
- Heath Twp. v. Sall, 442 Mich 434 (1993) (prior nonconforming use is vested and protected)
- Edw. C. Levy Co. v. Marine City Zoning Bd. of Appeals, 293 Mich App 333 (2011) (expansion of a prior nonconforming use is generally not permitted)
- Norton Shores v. Carr, 81 Mich App 715 (1978) (continuation must be substantially same size and essential nature)
- Patchak v. Lansing Twp., 361 Mich 489 (1960) (nonconforming use limited to the area nonconforming at ordinance enactment)