DUSDAL v CITY OF WARREN
No. 52,861
Supreme Court of Michigan
May 4, 1972
387 Mich 354 | 196 N.W.2d 778
There should be no question of a guilty plea. The tenor of the statute is that doubts should be resolved against taking the plea.
When the defendant here told the court he was so drunk he did not remember what he did, the court should have rejected the plea even though defendant‘s intoxication would be no defense at a trial.
I would remand for trial.
DUSDAL v CITY OF WARREN
OPINION OF THE COURT
- ZONING—NONCONFORMING PRIOR USE.
The reasonableness of a zoning ordinance amendment is not an issue in an action based upon a prior nonconforming use.
- ZONING—NONCONFORMING PRIOR USE—VESTED RIGHT.
A prior nonconforming use is a vested right to continue the lawful use of real estate in the manner in which it was used prior to the adoption of a zoning ordinance; though
the ordinance be reasonable, it cannot operate to oust the property owner of his vested right. - ZONING—NONCONFORMING PRIOR USE—VESTED RIGHT—ABANDONMENT—EVIDENCE—BURDEN OF PROOF.
The record does not support a finding of legal abandonment of a prior nonconforming use where the burden of proving abandonment was on a city attempting to enforce a residential zoning amendment and it introduced no evidence from which it would be reasonable to conclude that the plaintiff ever intended to relinquish or abandon his vested right to use his property in the mаnner in which it was being used prior to the amendment.
- ZONING—NONCONFORMING PRIOR USE—ABANDONMENT—NONUSER.
Abandonment of a nonconforming use in the contemplation of the law is something more than a mere nonuser; it is rather a nonuser combined with an intention to abandon the right to the nonconforming use.
- NUISANCE—ZONING—NONCONFORMING PRIOR USE—VESTED RIGHT—INFERENCES.
The existence of a vested right to a prior nonconforming use does not per se resolve the issue of whether property is being used so as to be a nuisance, but it does mean that the existence of a nuisance is not to be inferred from proof of activities which do not comply with the zoning ordinance.
DISSENTING OPINION
ADAMS, SWAINSON, AND WILLIAMS, JJ.
- NUISANCE—ZONING—NONCONFORMING PRIOR USE—MUNICIPAL CORPORATIONS—PUBLIC HEALTH—PUBLIC SAFETY—SAFETY OF COMMUNITY.
Property owner‘s claim that he has an industrial nonconforming use of his property under a zoning ordinance provides no basis for him to contest a city‘s authority to require him to remove junk on the property because property can be deemed industrial nonconforming or even zoned industrial and still be declared a nuisance if it endangers or interferes with the public health, welfare, or safety of the surrounding community.
- NUISANCE—PUBLIC NUISANCE—ABATEMENT.
Trial judge properly found a public nuisance and ordered the abatement of litter, articles and junk located outside a building on plaintiff‘s premises.
ZONING—NONCONFORMING USE—ABANDONMENT. Trial judge correctly found abandonment of an industrial nonconforming use because plaintiff‘s casual activities over the years cannot be considered to have bеen such a use of his property.
- ZONING—PUBLIC POLICY—NONCONFORMING USE—ORDINANCES.
The desirability of zoning, as a matter of public policy, is clearly recognized and, in the furtherance of zoning, it is also clearly recognized that it is desirable to eliminate nonconforming uses; various provisions in zoning ordinances have been used to further this objective and their validity has been established.
- ZONING—NONCONFORMING USE—ABANDONMENT—EVIDENCE—COURTS—STATUTES.
Zoning ordinance provision that failure to continue to use a nonconforming use for a рeriod of one year shall be conclusive proof of an intention to abandon such nonconforming use cannot be sustained; rules of evidence are for the determination of the courts and courts may accept and follow a legislative enactment of a rule of evidence but they are not obliged to do so.
- ZONING—NONCONFORMING USE—ABANDONMENT—PROOFS—EVIDENCE.
Proof that a nonconforming use under a zoning ordinance has not been utilized for a period of one year in addition to the usual proofs of abandonment or nonabandonment shall, in future cases, constitute prima facie proof of its abandonment.
Appeal from Court of Appeals, Division 2, McGregor, P. J., and Danhof and Larnard, JJ., affirming Macomb, Walter P. Cynar, J. Submitted November 2, 1971. (No. 21 October Term 1971, Docket No. 52,861.) Decided May 4, 1972.
23 Mich App 583 reversed.
Complaint by Otto Dusdal against the City of Warren for a declaratory judgment that defendant‘s action declaring plaintiff‘s use of his land to be a nuisancе to be void, for injunctive relief, and
L. Edwin Wenger (Larry D. Vande Vrede, of counsel), for plaintiff.
Sherman P. Faunce, II, City Attorney, and John J. Murray, Chief Assistant City Attorney, for defendant.
T. E. BRENNAN, J.
FACTS
Plaintiff is the owner of a parcel of land one and one-half (1-1/2) acres, rectangular in shape, being 629 feet deep and 98 feet wide. This property is located on the west side of Hoover Road between Ten and Eleven Mile Roads in the City of Warren.
Plaintiff purchased the property in 1950, when Warren was still a township. The land was then zoned by the township for “multiple use“. We are told that “multiple use” meant that the property could be used for industrial, commercial or residential purposes. Plaintiff‘s and surrounding lands were then being used for agricultural purposes.
Whаtever the township zoning prohibited, it is clear that plaintiff, in the year 1950, moved several large punch presses onto his land, and after obtaining a building permit from the township began constructing a cement block building around the presses.
What is not so clear is the precise use to which this land was put. Plaintiff seems to have been
Among the variоus items scattered or stored on plaintiff‘s property during the years 1950 to 1969 were several junk automobiles, two bulldozers, a truck with a boom, a cultivator, plow and disk, some white escort carts, a portable arc welder, some old tires and wheels, a housing for an engine, an axle for a trailer, a bulldozer trailer, a materials conveyor, a house trailer, a boat, and miscellaneous wood and metal scrap.
A phоtograph of the premises, introduced in evidence at the trial, is reproduced with this opinion.
Plaintiff completed the main part of the cement block structure, but has never obtained a final inspection or approval of the building or been issued a certificate of occupancy.
In 1952, the township zoning ordinance was amended. Plaintiff‘s property and surrounding lands were then designated residential and restricted to such use. There is no dispute that at the time of such amendment, plaintiff‘s property was dedicated to a nonconforming use.
In 1957, the township became the City of Warren. Township zoning ordinances were adopted by the city.
In 1956, an action was commenced by homeowners living near plaintiff‘s property for the purpose of prohibiting plaintiff‘s industrial use of his land. Thirteen years later that action was dismissed for lack of progress. On April 25, 1967, thе defendant city passed a resolution declaring the plaintiff‘s property a public nuisance. The plaintiff was directed by a resolution of the city council to remove all outside storage of materials and machinery by 5 p.m. April 1, 1968.
Plaintiff‘s response was to commence this litigation. It is founded upon a complaint filed in the
The defendant city filed a counter-complaint, alleging that its resolution declaring the public nuisance was proper and regular and asking the court for injunctive relief to abate the claimed nuisance.
Trial was held before the Honorable Walter P. Cynar, circuit judge in Macomb County. He rendered his opinion on April 1st, 1969. Judge Cynar found that the residential zoning ordinance was not unreasonable. He ordered the plaintiff to remove the junk stored on the outside of the premises, exempting from said order сertain equipment found not to be junk.
Plaintiff appealed and the Court of Appeals affirmed the judgment of the circuit court in a brief per curiam opinion, citing Padover v Farmington Twp, 374 Mich 622 (1965); Biske v City of Troy, 381 Mich 611 (1969); Brae Burn, Inc. v Bloomfield Hills, 350 Mich 425 (1957); Lamb v City of Monroe, 358 Mich 136 (1959). None of these cases involved a prior nonconforming use.
In an action based upon a prior nonconforming use the reasonableness of the zoning amendment is not in issue. A prior nonconforming use is a vested right to continue the lawful use of real estate in the manner it was used prior to the adoption of a zoning ordinance. Though the ordinance be reasonable, it cannot operate to oust the property
The record does not support a finding of legal abandonment. Abandonment in the contemplation of the law is something more than mere nonuser. It is rather a nonuser combined with an intention to abandon the right to the nonconforming use. The burden of proving abandonment was on the city. It introduced no evidence from which it would be reasonable to conclude that the plaintiff ever intended to relinquish or abandon his vested right to use his property in the manner in which it was being used prior to the residential zoning amendment.
The record does not support a finding that the plaintiff was engaged solely in the electrical contracting business. On the contrary, the record can оnly support a determination that the plaintiff was engaged in numerous endeavors from the year 1950 down to and including the trial in 1969.
The existence of a vested right to a prior nonconforming use does not per se resolve the issue of nuisance, but it does mean that the existence of a nuisance is not to be inferred from proof of activities which do not comply with the zoning ordinance. The judgment of the circuit court and the Court of Appeals are reversed and this cause is remanded to the circuit court for further pro-
T. M. KAVANAGH, C. J., and BLACK and T. G. KAVANAGH, JJ., concurred with T. E. BRENNAN, J.
ADAMS, J. (dissenting).
I. THE PROCEEDINGS
In August 1950, plaintiff purchased 1-1/2 acres of land in Warren Township, Macomb County, Michigan. At that time, the property was zoned for three purposes—industrial, commercial, and residential. Plaintiff moved onto his land three large punch presses and other equipment he used in his various occupations of restoring old cars, electrical work, and general contracting. On October 4, 1950, Dusdal applied for a building permit for a commercial building. On October 6, 1950, after a first trench
In 1952, the City of Warren rezoned the area to residential only. From time to time, various improvements on Dusdal‘s building were approved by the city. The city never interfered with his use of the land. However, on April 25, 1967, in response to complaints from the neighborhood concerning junk on the property, the city passed a resolution declaring the property a public nuisance and ordering plaintiff to remove the debris from his outside premises.
Dusdal thereupon applied for an injunсtion in April 1968 to prevent the city from carrying out its resolution. He complained that he used his property for industrial purposes, that the city had refused to grant him an occupancy permit, that he had been ordered to remove all outside storage materials, and that the refusal of the occupancy permit and the order to remove the outside materials constituted confiscation of his property and prоhibited a nonconforming use.
The city denied that its actions were confiscatory or prohibited Dusdal‘s enjoyment of his nonconforming use and, by counter-complaint, asked that it be allowed to order Dusdal to remove “the litter, articles and junk from said premises“.
The circuit judge issued a show cause order to Dusdal as to why he should not be ordered “to abate the public nuisance and remove the litter, articles and junk from said prеmises“.
Dusdal then amended his complaint to challenge the residential zoning of his property. The city answered that plaintiff had a nonconforming use but had illegally expanded that right by allowing open storage and junk. Under the city‘s ordinances,
At the trial in 1969, it became clear that Dusdal wanted a nonconforming industrial use or his property rezoned M-2. Dusdal‘s testimony showed that he repaired an average of one car a year, made some lighting poles and ventilating systems, and did some remodelling and repairs on buildings. Nothing was manufactured on a mass production basis. Outside of thе building, there was a car chassis basically stationary for 17 years, and a conveyor, a bulldozer, an arc welder, and two escort carts not used for two years or longer. Other equipment was also parked outside. The zoning inspector, who had been inside the building, testified that it was “Extremely crowded * * * before you could do one thing in there, you would have to move something else to have the room to do it“.
After hearing the testimony, the judge concluded that the large presses could not be construed to make the building around them either industrial or commercial; that “the Plaintiff did not support his contention in the last several years that he operated an electrical contracting, fabricating, welding or any other business; or even if he did on a minor scale, such operation does not relate to the various and sundry junk accumulation on the propеrty in question“. (Emphasis added.) As for an industrial nonconforming use, “the property has not been used for industrial purposes and such nonconforming use, if any, over the years has not been exercised and has been abandoned several years before the action herein“. The judge did not find the zoning
The Court of Appeals affirmed the сircuit court but based its decision on the validity of the zoning ordinance. It also affirmed the trial court‘s conclusion that an industrial use had not been shown.
II. NUISANCE
On grant of leave to appeal to this Court, plaintiff challenges the zoning ordinance, asks for a judicial rezoning of his property to M-2, and an occupancy permit. These issues have nothing to do with the separate equitable issue of a public nuisance caused by junk on the property. Dusdal‘s claim that he has an industrial nonconforming use provides no basis for him to contest the city‘s authority to require him to remove the junk. Property can be deemed industrial nonconforming or even zoned industrial and still be declared a nuisance if it endangers or interferes with the public health, welfare, or safety of the surrounding community. It is clear from the record in this case1 that the trial judge did not err in finding a public nuisance and оrdering its abatement.
III. ABANDONMENT
The question as to what constitutes abandonment of a nonconforming use has not been fully explored by this Court. Many cases state that abandonment is to be determined as a matter of the intent of the person possessing the nonconforming use, plus some overt act indicating abandonment. The trouble with such a rule is that it tends to turn mainly upon a subjective element—what has gone on in the mind of the possessor of thе nonconforming use. Since a
8 McQuillin, Municipal Corporations (3rd ed), § 25.189, p 377, states:
“It is a general rule that the right to a nonconforming use continues only so long as the use continues to exist in fact and until its legal termination * * *.”
Dusdal maintained he had an industrial use because he utilized the building for “fabricating, welding,” and repair work. Though Dusdal moved three large punch presses on the land at the time of purchase (1950), he did not produce any parts from these presses in 1951, did one job in 1952, and had one die tryout in 1953. During 1954–1955, he could not remember any work being done with the presses. During 1956–1957, he could testify to one die tryout. As to the length of that tryout, defendant‘s attorney asked: “That would be just an hour a day or so?” Dusdal responded: “Or week.” The lаst time he used the presses at all was for one week during 1963 or 1964. The presses were sold at least four years before Dusdal filed his complaint.
As for welding, his attorney asked: “Is there anything there that you make?” Dusdal responded: “We take some parts, half of one and half of another one, and cut it off and weld them together and so on.” However, he repaired only one car per year. In general contracting, he could not remember doing any job from 1953–1956, and from 1956–1960 could only testify to six jobs.
In 1964, Dusdal could not remember doing any fabricating. In 1965, “we fabricated some lighting poles and some photographic parts, and also some
If plaintiff ever did make an industrial use of his property, his casual activities over the years cannot be considered to have been such a usе. The trial judge correctly found abandonment.
IV. THE ONE-YEAR PROVISION OF THE CITY‘S ORDINANCE AS TO ABANDONMENT
The desirability of zoning, as a matter of public policy, is clearly recognized. In the furtherance of zoning, it is also clearly recognized that it is desirable to eliminate nonconforming uses. Various provisions in zoning ordinances have been used to further this objective and their validity has been established.2
Art IV, § 4.17(a) of the City of Warren zoning ordinance adopted in 1960 provides:
“Failure to continuе to use any land, building or structure, or part thereof, which use is a nonconforming use under this Ordinance, for a period of one (1) year or more shall be held to be conclusive proof of an intention to legally abandon any such non-conforming use.”
The ordinance provides an objective test of the subjective question of intent. However, the provi-
This ordinance has the effect of shifting the burden of proof as to abandonment after a one-year period of nonuse and to this extent it is an acceptable and desirable rule of evidence. It balances the continuation of the nonconforming use of an owner of property against the desirability to the public generally of eliminating such a use. It affords a reasonable means of determining the existence of such a use or of its abandonment. Consequently, in future cases, in addition to the usual proofs of abandonment or nonabandonment, proof that a nonconforming use has not been utilized for a period of one year shаll constitute prima facie proof of its abandonment.
V. RELIEF
In this case, the judge ruled that the city could require Dusdal to remove the outside junk on his premises. The judge did not order him to remove his welding equipment, material conveyor, farm equipment, or any material associated with his electrical work. The order, allowing outside storage of this equipment, is contradictory to the judge‘s finding of no industrial use or abandonment of same.
However, from the city‘s counter-complaint and opening statement at trial, the city was mainly interested in getting rid of litter and junk. The equipment was not junk. The fact that the judge, in spite of his finding of no industrial use, allowed outside storage of various pieces of equipment, would appear to be to plaintiff‘s advantage.
The Court of Appeals and the trial court are affirmed. Costs to appellee.
SWAINSON and WILLIAMS, JJ., concurred with ADAMS, J.
T. E. BRENNAN
SUPREME COURT JUSTICE