GACKLER LAND COMPANY, INC v YANKEE SPRINGS TOWNSHIP
Docket No. 75246
Supreme Court of Michigan
Arguеd November 12, 1985 (Calendar No. 3). Decided December 30, 1986.
427 MICH 562
Following the decision, the Supreme Court decided Robinson Twp v Knoll, 410 Mich 293 (1981), holding that the exclusion per se of mobile homes from all areas not designated as mobile home parks was not a permissible exercise of the police power, and the trial court granted the plaintiff a new trial. In the interim, the township had amended the zoning ordinance to permit mobile or prefabricated homes outside mobile home parks, provided, inter alia, the homes had a minimum width of twenty-four feet. The circuit court held the new standards valid and found against the plaintiff on the ground that it had failed to establish that the restrictions precluded the use of the plaintiff‘s property for any purpose fоr which it was reasonably
REFERENCES
Am Jur 2d, Mobile Homes, Trailer Parks, and Tourists Camps §§ 13, 14.
Am Jur 2d, Zoning and Planning §§ 14, 16, 38 et seq., 178, 179, 183 et seq.
Validity and application of zoning regulations relating to mobile home or trailer parks. 42 ALR3d 598.
Aesthetic objectives or considerations as affecting validity of zoning ordinance. 21 ALR3d 1222.
Use of trailer or similar structure for residence purposes as within limitation of zoning provision. 96 ALR2d 232.
In an opinion by Justice BOYLE, joined by Justices BRICKLEY, CAVANAGH, and RILEY, the Supreme Court held:
The zoning ordinance at issue is neither unconstitutional on its face nor as applied to the plaintiff‘s property.
- The requirements of the zoning ordinance are either reasonable standards designed to assure favorable comparison of mobile homes with housing built on site or constitute a reasonable exercise of police power for the protection of the public. Moreover, the ordinance does not preclude other reasonable uses of the land. Confiscation is not established simply by showing a disparity in value with respect to various uses.
- A tangible change in the property by way of preparation for the actual use of the property as a plat for single-width mobile homes was not established by virtue of expenditures in the development of the land as a residential subdivision. The property, as developed, is suitable for site-built, double-width, and single-width mobile homes. Although approximately one-fourth of the back lots in the plat are occupied by single-width mobile homes, an apparent use of the property as a plat for single-width mobile homes has not been established when the remaining back lots could be used for site-built or mobile homes at the plaintiff‘s option.
- The ordinance is not preempted by federal or state law. The ordinance regulates the location and conditions of mobile home placement and, thus, does not conflict with state and federal construction and industry regulations.
Affirmed.
Justice LEVIN, joined by Chief Justice WILLIAMS, dissenting, stated that a use of property consistent with a zoning ordinance at the time development is begun may be continued following amendment of the ordinance that would bar its use, without regard to whether the property, consistent with the change in zoning, can be used for another purpose, where the owner had established a vested right to so use the land prior to the amendment by tangibly changing the land by excavation and construction or by making substantial expenditures with respect to development of the land.
- An owner of property who seeks to establish a vested right to a use of the land not in conformance with an amended zoning ordinance need not show that the land cannot feasibly be used in conformity with the changed zoning. The inquiry is whether the nonconforming use was established before the
enactment of the zoning that would bar the use. If so, the use may be continued without regard to whether the property, consistent with the change in zoning, can be used for another purpose. - Generally, land development and building construction extend over a period of time. A developer will be recognized to have established a vested right to a use not in conformance with an amended zoning ordinance where there has been a tangible change in the land by excavation and construction or where work of a substantial character has been done. A landowner that has reached a stage of substantial construction or action on the basis of an existing zoning ordinance has the right to complete the development and to use the property in accordance with the zoning extant when the work was begun without regard to zoning amendments which thereafter become effective.
- In this case, the plaintiff had established a vested right to sell the lots in issue for single-width prefabricated homes before the ordinance was amended. The development was lawfully begun prior to the change in zoning, and substantial sums of money were spent in carrying out the construction plan. The pattern of development was well-established at the time the ordinance was amended.
- It is not sufficient to say to a land developer who has made expenditures for sewer, water, and road improvements in reliance on existing zoning that the improvements have made the land as suitable or equally suitable for a use consistent with a change in zoning as a use permitted under the former zoning. Decisions to invest are made in part on the basis of existing zoning. Such investment-backed expectations are entitled to protection. A land or lot developer should be permitted to use its property for a use permitted when improvements are made unless a court can properly find that the investment was made without regard to the zoning.
Justice ARCHER took no part in the decision of this case.
138 Mich App 1; 359 NW2d 226 (1984) affirmed.
- ZONING — LAND USE — MOBILE HOMES.
A municipality may exclude or restrict placement of mobile homes in residential neighborhoods where the homes fail to satisfy reasonable standards designed to assure favorable comparison of mobile homes with homes constructed on a site.
- ZONING — LAND USE — CHALLENGES OF ORDINANCES.
In order to successfully challenge a zoning ordinance, the ordi-
nance must be shown to be an arbitrary and unreasonable restriction upon the use of the property in question with no room for legitimate differences of opinion concerning reasonableness and, if enforced, to preclude use of the property for any purposes for which it is reasonably adapted. - ZONING — NONCONFORMING LAND USE — CHALLENGES OF ORDINANCES.
A zoning ordinance prohibiting the enlargement of a nonconforming land use is not subject to challenge as an unreasonable deprivation of property rights; such restriction is within the police power of the state and has for its purpose the elimination of inconsistency brought about by the nonconforming use.
- ZONING — NONCONFORMING LAND USE — TANGIBLE CHANGE IN LAND.
To establish a nonconforming use of land, a property owner must show work of a substantial character done by way of preparation for an actual use of the property; the use must be apparent and manifested by a tangible change in the land, rather than an intended or contemplated change.
- ZONING — LAND USE — MOBILE HOMES — CONSTRUCTION AND SAFETY STANDARDS.
A zoning ordinance which limited placement of mobile homes within a municipality regulated land use and did not conflict with state or federal standards for the construction or safety of mobile homes (
42 USC 5401 et seq. ;MCL 125.1101 et seq. ,125.1519 ,125.1520 ; MSA 19.855[1] et seq., 5.2949[19], 5.2949[20]).
Siegel, Hudson, Gee, Shaw & Fisher (by James H. Fisher) for the plaintiff.
Bauckham, Reed, Lang, Schaefer, Sparks & Rolfe, P.C. (by Richard L. Lang) for defendant Yankee Springs Township.
Law, Weathers & Richardson (by Robert W. Richardson) for defendant Payne Lake Association.
Amici Curiae:
Dykema, Gossett, Spencer, Goodnow & Trigg (by Rex E. Schlaybaugh, Jr., William J. Perrone, and
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Walter V. Kron and James L. Stropkai, Assistant Attorneys General, for Michigan Mobile Home Commission.
OPINION OF THE COURT
BOYLE, J. This case involves the validity of a zoning ordinance in Yankee Springs Township, Barry County, Michigan, which excludes from the property of plaintiff, Gackler Land Company, Inc., the placement of “single-wide” mobile homes that do not comply with certain requirements.
Plaintiff presents the following questions for our consideration: (1) Whether the zoning ordinance is unconstitutional on its face or as applied to plaintiff‘s plat, (2) whether plaintiff has established a vested nonconforming use as a single-wide mobile home plat, and (3) whether certain portions of the zoning act are preempted by federal and state law.
We hold that the zoning ordinance is neither unconstitutional on its face nor as applied to plaintiff. The requirements of the zoning ordinance are either reasonable standards designed to assure favorable comparison of mobile homes with site-built housing or constitute a reasonable exercise of police power for the protection of the public. Moreover, the zoning ordinance does not preclude other reasonable uses of the land. Plaintiff cannot establish a confiscation by simply showing a disparity in value between uses.
We further hold that by virtue of expenditures in the development of the land as a residential subdivision, plaintiff has not established a tangible change by way of preparation for the actual use of the property as a single-wide mobile home plat. The property, as developed, is suitable for site-
Finally, we hold that the federal and state laws do not preempt portions of the zoning ordinance. The zoning ordinance regulates the location and conditions of mobile home placement and therefore does not conflict with the construction and industry regulations set forth by the federal and state laws.
Accordingly, the decisions of the trial court and the Court of Appeals upholding the zoning ordinance are affirmed.
FACTS
The plaintiff platted approximately twenty acres of a 103-acre tract along the northwest shore of Payne Lake. This plat, “Gackler‘s Payne Lake Plat,” was approved by the township and consists of fifty-four lots. The zoning in effect at that time permitted mobile, prefabricated, and site-built homes on the lots. After the plat was approved, restrictions were recorded excluding mobile homes from the twelve lots which bordered the lake. Through 1972, eleven single-wide mobile homes had moved onto the back lots in the plat.
In 1972, the defendant township enacted a zoning ordinance which restricted mobile homes to mobile home parks. Pursuant to this Court‘s decision in Robinson Twp v Knoll, 410 Mich 293; 302 NW2d 146 (1981), the township amended its zoning ordinance to permit mobile homes meeting the
1. It complies with the minimum square footage requirements [720 square feet].
2. It has a minimum width along any exterior side elevation of 24 feet and a minimum internal height of seven and one-half feet.
3. It is firmly attached to a solid foundation constructed on the site in accordance with the township building code, which shall be a fully enclosed basement or crawl space ....
4. It does not have exposed wheels, towing mechanisms, undercarriage or chassis.
5. The dwelling is connected to a public sewer and water supply or to such private facilities approved by the local health department.
6. The dwelling contains storage area(s) either in a basement located under said dwelling, in an attic area, in a closet area or in a separate fully enclosed structure on the site, ... equal to not less than 15% of the interior living area of the dwelling.
7. The dwelling is aesthetically compatible in design and appearance to conventionally on-site constructed homes ....
8. The dwelling contains no additions of rooms or other areas which are not constructed with similar materials and are similar in appearance and with similar quality of workmanship as in the original structure ....
9. The dwelling complies with all pertinent building and fire codes ....1 [138 Mich App 1, 7-8; 359 NW2d 226 (1984).]
I. IS THE ZONING ORDINANCE CONSTITUTIONAL ON ITS FACE AND AS APPLIED TO PLAINTIFF?
Plaintiff contends that the township zoning ordinance is unconstitutional on its face because it operates to exclude all single-wide mobile homes from areas other than mobile-home parks. We disagree.
In Robinson Twp v Knoll, supra, 310, this Court held that “[t]he per se exclusion of mobile homes from all areas not designated as mobile-home parks has no reasonable basis under the police power, and is therefore unconstitutional.” We also held:
[A] municipality need not permit all mobile homes, regardless of size, appearance, quality of manufacture or manner of on-site installation, to be placed in all residential neighborhoods. A mobile home may be excluded if it fails to satisfy reasonable standards designed to assure favorable comparison of mobile homes with site-built housing which would be permitted on the site, and not merely because it is a mobile home. [Id.]
We initially note that these regulations do not treat mobile homes materially different than site-built homes. We further find that the requirements, as stated, are either reasonаble standards designed to assure favorable comparison of mobile homes with site-built housing, or constitute a reasonable exercise of police power for the protection of the safety, health, morals, prosperity, comfort, convenience, and welfare of the public or a substantial part of the public. Robinson Twp, supra, 312.
Nor are we persuaded that the zoning ordinance is unconstitutional as applied to plaintiff. We believe the trial court properly summarized the plaintiff‘s argument in this regard:
The thrust of plaintiff‘s argument is that because there are already existing on the land in question as nonconforming uses 11 mobile homes, any ordinance that prevents the placing of similar mobile homes on the remaining lots is unreasonable. The reasons for this conclusion are that (1) because mobile homes are situated on the plat in question that are nonconforming, aesthetics cannot be a proper concern of the township, at least in regard to the requirement that dwellings have an interior ceiling height of 7½ feet, and an external width of 24 feet, and (2) that because there is no indication that any of the existing mobile homes will be vacating, it is not reasonable for the township to continue to classify these homes as nonconforming uses, which must be replaced with conforming uses when their useful life is over, and to require conforming uses on the as yet unsold lots ....
Plaintiff [further] argues that (1) the ordinance restricts a reasonable use of the land (that being
used as a site for placing mobile homes thereon) and (2) plaintiff cannot sell the remaining plots at the price he is asking for any use other than mobile home sites because no one will want to purchase land to build next to mobile homes.
The following principles of law are applicable to plaintiff‘s claim:
The plaintiff must show:
“[F]irst, that there is no reasonable governmental interest being advanced by the present zoning classification itself ... or
“[S]econdly, that an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.” [Kirk v Tyrone Twp, 398 Mich 429, 434; 247 NW2d 848 (1976).]
There are four rules for applying these principles:
1. “[T]he ordinance comes to us clothed with every presumption of validity.”
2. “[I]t is the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner‘s use of his property .... It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness.”
3. “Michigan has adopted the view that to sustain an attack on a zoning ordinance, an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions on his property preclude its use for any purposes for whiсh it is reasonably adapted.”
4. “This Court, however, is inclined to give considerable weight to the findings of the trial
judge in equity cases.” [Kirk, supra, 439-440. Citations omitted.]
We disagree with plaintiff that the existence of eleven single-wide homes in the plat renders the ordinance unreasonable to plaintiff. Notwithstanding the eleven mobile homes, the zoning ordinance will improve the aesthetics of the area, thereby advancing a reasonable government interest. Moreover, the state may properly provide for the limitation and eventual elimination of a nonconforming use in order to advance the goals of the zoning plan. Austin v Older, 283 Mich 667, 676; 278 NW 727 (1938).
We also conclude that plaintiff has not carried its burden of establishing that if the ordinance is enforced, any purpose to which the land is reasonably adapted is precluded. As the trial court found, “the ordinance did not deprive plaintiff of other uses of his land, since the evidence indicated that the vacant lots would sell for conventional or modular home occupancy if the asking price was realistic and if screening was provided for the existing mobile homes.” We further agree with the Court of Appeals that plaintiff cannot establish a confiscation by simply showing a disparity in value between uses. Brae Burn, Inc v Bloomfield Hills, 350 Mich 425; 86 NW2d 166 (1957); Kirk v Tyrone Twp, 398 Mich 429; 247 NW2d 848 (1976). Justice SMITH pointed out in Brae Burn, Inc v Bloomfield Hills, supra, 433-434:
Disparity in values between residential and commercial uses will always exist. ... If such a showing serves to invalidate an ordinance the efforts of our people to determine their living conditions will be hopeless. To avoid “confiscation” in this sense (the obtaining of the highest dollar for one particular lot) will result in confiscation of far greater
scope in property values in the municipality as a whole due to its inability to control its growth and development.
We stress that this is not a situation where the property is unsuitable for the uses allowed by the zoning ordinance and has little or no value if so restricted. Compare Fenner v Muskegon, 331 Mich 732; 50 NW2d 210 (1951). Therefore, the issue of confiscation is not properly before us. See Brae Burn, supra.
In summary, we find that plaintiff has not established that the zoning is unconstitutional either on its face or as applied to plaintiff.
II. HAS PLAINTIFF ESTABLISHED A NONCONFORMING USE IN THE PROPERTY AS A SINGLE-WIDE MOBILE HOME PLAT?
Plaintiff asserts that it has established a vested nonconforming use as a mobile home plat in advance of the existence of the zoning ordinance, by virtue of the following facts: (1) a road was constructed, (2) the plat was surveyed and monuments were erected, (3) grading and excavation work was completed, and (4) eleven mobile homes were installed. Plaintiff further argues that the plat must be viewed as a whole and that, when so viewed, the pattern of development of the plat as a mobile home plat was well-established prior to the enactment of the zoning ordinance. Even viewing the plat as a whole, we are not so persuaded.
A claim to a prior nonconforming use does not test the reasonableness of a zoning ordinance. “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.” Dusdal v City of Warren, 387 Mich 354, 359; 196 NW2d 778 (1972). A zoning ordinance cannot operate to oust the property owner of his vested right even though the ordinance is reasonable. Id. “An ordinance requiring immediate cessation of a nonconforming use may be held to be unconstitutional because it brings about a deprivation of property rights out of proportion to the public benefit obtained ....” Austin v Older, supra, 676. However, an ordinance prohibiting the enlargement of a nonconforming use is not subject to the same challenge. Id. This more limiting restriction is within the police power of the state and has for its purpose the elimination of the inconsistency brought to bear by the nonconforming use in a zoning classification. Id.2
To establish a nonconforming use, “there must be work of a ‘substantial character’ done by way of preparation for an actual use of the premises.” Bloomfield Twp v Beardslee, 349 Mich 296, 307; 84 NW2d 537 (1957). The actual use which is nonconforming must be apparent and manifested by a tangible change in the land, as opposed to intended or contemplated by the property owner. In this regard, preliminary operations such as order-
In the case at bar, the dissent would hold:
[T]he subdivision development should be viewed as a whole, as a structure only part of which had been completed, analogous to a building that is partially completed or to a nonconforming use that is established in a portion but not in all of a building before an amendment to a zoning ordinance rendering such structure or use nonconforming. It has been said that “the extension of the nonconforming use is permissible if the design of the building indicates that at the time of the passage of the zoning restriction it was intended that the building be dedicated in its entirety to such use.” [Post, p 587, quoting 8A McQuillin, Municipal Corporations (3d rev ed), § 5.208, p 118.]
We find this analogy inapposite. This is not a situation where construction of a project before completion is halted by the enactment of a zoning ordinance and to disallow completion of the project would work a clear injustice. Compare Eklund v Clackamas Co, 36 Or App 73, 82; 583 P2d 567 (1978). In this case, development of the plat is virtually complete save for sewer and water hook-ups on the back lots which have no bearing on whether the land will be used for “dwellings” under the ordinance or as a single-wide mobile home plat. Moreover, it is undisputed that the improvements to the property have made the lots as suitable for “dwellings” under the ordinance as
The dissent writes, “A property owner who claims a vested right to a nonconforming use need not show that the land cannot feasibly be used in conformity with the changed zoning.” (Post, p 584.) While this statement may be true in general, whether the land is suitable for the uses permitted in the zoning ordinance is relevant to the question whether a nonconforming use exists at the time the zoning ordinance is enacted.
In this case, the improvements to the land by way of the road construction, surveying, setting of monuments, grading, and excavation work have rendered the lots in the plat equally suitable for the placement of single-wide mobile homes and conventional dwellings. These improvements, therefore, do not constitute work of a substantial character which makes apparent an actual use of the plat as a single-wide mobile home plat. Nor does the fact that approximately one-fourth of the back lots are occupied by single-wide mobile homes establish the nonconforming use. The trial court found, and we agree, that the vacant lots would sell for conventional or modular home occupancy if the asking price werе realistic and if screening were provided for the existing mobile homes. The presence of the existing mobile homes, therefore, does not create an actual use in the vacant lots for placement of single-wide mobile homes.
Because an insubstantial number of lots in the plat are occupied by mobile homes, and the lots are suitable for more than single-wide mobile housing, this case is distinguishable from the
Were it not for the zoning ordinance at issue, plaintiff would hold the option to sell the unsold unrestricted lots for the use which would command the highest price. Plaintiff claims that it can obtain a substantially higher price if the property is sold for mobile home use. Plaintiff therefore intends to sell the lots for that purpose. Accordingly, what plaintiff actually and understandably seeks here is preservation of an option to sell the
Nor are we convinced by plaintiff‘s suggestion that the township is estopped from enacting the zoning restrictions because it had notice of plaintiff‘s plans to sell the property as sites for single-wide mobile homes by virtue of the plat restrictions recorded in the Barry County Register of Deeds. The trial court found that the township approved plaintiff‘s plat without being aware of the plat‘s restrictions. Moreover, plaintiff has not asserted any authority on appeal to this Court to
III. IS THE ZONING ORDINANCE INVALID BECAUSE IT IS PREEMPTED BY FEDERAL AND STATE LAW AND WAS NOT ENACTED PURSUANT TO THE MICHIGAN MOBILE HOME COMMISSION ACT?
The plaintiff also contends that certain portions of the zoning ordinance are preempted by federal and state law, specifically, the National Manufactured Housing Construction and Safety Standards Act,
The purpose of the federal act is set forth in
The Congress declares that the purposes of this chapter are to reduce the number of personal injuries and deaths and the amount of insurance costs and property damage resulting from manufactured home accidents and to improve the quality and durability of manufactured homes. Therefore, the Congress determines that it is necessary to establish Federal construction and safety standards for manufactured homes and to authorize manufactured home safety research and development. [Emphasis added.]
The same reasoning applied to the Michigan State Construction Code compels a similar conclusion under that code. Further,
Finally, we have carefully considered the briefs of plaintiff and amicus curiae, but are not persuaded that zoning ordinances which regulate the conditions and locations of mobile homes outside mobile home parks are included within the scope of the Mobile Home Commission Act. Our review of
We affirm the decision of the Court of Appeals.
BRICKLEY, CAVANAGH, and RILEY, JJ., concurred with BOYLE, J.
LEVIN, J. (dissenting). Gackler Land Company, Inc., platted a twenty-acre strip of a larger tract into fifty-four lots and additional outlots. Restrictions were recorded limiting the use of the twelve lots fronting on Payne Lake to site-built homes and permitting the use of the remaining forty-two lots for mobile or prefabricated homes. A paved road serving all the lots was constructed in accordance with county road commission standards through the center of the strip, the lots were surveyed, graded and filled, monuments were set, excavation work for drainage was completed, and sewers were installed for some of the lots.1
When the plat was recorded in 1969, the township zoning ordinance permitted the construction of mobile or prefabricated homes on the back lots.
Gackler commenced this action, challenging the zoning restriction banning mobile or prefabricated homes except in mobile home parks. A few days before this Court‘s decision in Robinson Twp v Knoll, 410 Mich 293, 310; 302 NW2d 146 (1981), the circuit judge found that the zoning restriction was reasonable, and that Gackler was not entitled to use the remaining back lots for single-wide prefabricated homes as a nonconforming use. In Robinson Twp, this Court held that the exclusion per se of mobile homes from all areas not designated as mobile home parks was not a permissible exercise of the police power. After Robinson Twp was decided, the judge granted a new trial.
Also after Robinson Twp, the township amended its zoning ordinance to permit mobile or prefabricated homes in residential zoning districts provided, among other criteria, the minimum width of the home was twenty-four feet. Over eighty-five percent of all the mobile or prefabricated homes sold are single wide, fourteen feet being the greatest width permitted on the highway. All the prefabricated homes placed in the subdivision were single wides.
The judge found that the new zoning standards respecting mobile or prefabricated homes located outside of mobile home parks were by and large valid. Addressing the twenty-four-foot width requirement, however, he said that the concern cannot be health or safety because both the federal and state governments2 permit the construction of
The judge ruled against Gackler because it had failed to establish that the restrictions imposed on the use of the Gackler property by the new zoning standards precluded use of the property for any purpose for which it was reasonably adapted.3 Since the evidence indicated that the vacant lots would sell “for conventional or modular home occupancy if the asking рrice was realistic and if screening was provided for the existing mobile homes,” the “plight of plaintiff here simply does not rise to the level of confiscation.”
The Court of Appeals agreed and affirmed:
[A]lthough plaintiff presented evidence that the lots could be sold for the asking price of $3,500 if the buyers could use single-wide mobile homes, there was contradictory testimony that the lots were far overpriced and that the lots could be (and had been) used for modular and custom built homes.4
We would reverse because Gackler had estab
A property owner who claims a vested right to a nonconforming use need not show that the land cannot feasibly be used in conformity with the changed zoning. The inquiry is whether the nonconforming use was established before the enactment of the zoning that would bar the use. If so, government may not interfere with the use without regard to whether the property can, consistent with the change in zoning, be used for another purpose.
I
Land development and building construсtion generally stretch out over a period of time. The question is at what point will a court recognize that the developer is entitled to protection from a change in zoning that would bar a use permitted when development or construction was commenced.
This Court has indicated that a vested right to a nonconforming use is established when there has been a tangible change in the land by excavation
A landowner who has reached a stage of substantial construction or action on the basis of existing zoning has the right to complete the development and to use the property in accordance with the zoning extant when the work was begun without regard to zoning amendments that thereafter become effective. Developers are thus assured that investments calculated on the basis of prevailing regulations will be protected.7
The township rural zoning act provides for continuance of nonconforming uses.
A
Allowing that a nonconforming use with respect to the lots on which the eleven prefabricated homes had been installed might have been established, the township asserts that the right to a nonconforming use applies only to those lots on which prefabricated homes were in place at the time of the zоning change. There is no sewer service to a number of the back lots and no improvements specific to these lots. The township argues that the road construction, grading, and excavating were undertaken mainly for the benefit of the lakefront lots and do not justify permitting the nonconforming use of the remaining lots.8
Gackler had lawfully commenced this development in 1969—before the change in zoning—and substantial sums of money had been spent in carrying out the construction plan. The pattern of development in this subdivision was well established by the time the township adopted the amendatory ordinance in 1972.10
B
The Court of Appeals affirmed the circuit court
II
Gackler relies on Richards v City of Pontiac, 305 Mich 666; 9 NW2d 885 (1943), where this Court found a vested right to continue operation of a trailer camp although in violation of a zoning ordinance because the owners had purchased the property and operated it as a trailer camp for one year before the enactment and subsequent amendment of a zoning ordinance and had spent $8,000 in improving the trailer camp. Gackler argues that in Richards there was no investigation whether each of the trailers in the park was in place before the passage of the ordinance; rather, the development was viewed as a whole. The township distinguishes Richards on the basis that the issue there did not concern a subdivision with individually platted lots, but a trailer camp.
The disposition of this issue by other state supreme courts is instructive. In Sarpy Co Bd of Comm‘rs v Petsch, 172 Neb 263, 268; 109 NW2d 388 (1961), the Supreme Court of Nebraska held that an owner of a trailer court had acquired a vested right to a nonconforming use of a three-acre tract. Before the zoning ordinance, the owner had used part of the three-acre tract as a trailer park and had installed thirteen trailers and staked out spaces for fifty-nine trailers. Water and sewer lines, power and telephone lines were made available for the entire tract. In allowing the owner to complete his project for fifty-nine trailers, the court said that “where a trailer-court project is partially completed when zoning regulations become effective, and the evidence is clear as to the extent of the project, the completed project will ordinarily determine the scope of the nonconforming use.”
In Blundell v West Helena, 258 Ark 123, 131; 522 SW2d 661 (1975), the landowner purchased a five-acre tract. Twelve mobile home spaces were laid out on the east side. A twenty-foot road was built to serve those spaces and thirteen additional spaces were laid out on the west side. Subsequently, a newly adopted zoning ordinance would
It is apparent that a land developer may acquire a vested right to a nonconforming use of improved vacant lots if the developer has the same kind of investment-backed expectation in a nonconforming use of improved lots that the owner of a nonconforming structure might have. A property owner is deemed to have acquired a vested right to a nonconforming use when he has made substantial expenditure in respect to the improvement of the property before the change in zoning.
III
Under each of the tests stated by the courts—“substantial use,” “tangible change in the land,” “integral part”15—Gackler had acquired a vested right to sell for use as sites for single-wide prefabricated homes all the back lots that had been improved with a paved road.
Gackler‘s recorded plan of development contemplated sale of the lakefront lots for site-built houses and the back lots for mobile or prefabricated homes. The road was constructed and other improvements were made on the basis of that plan.
The remaining back lots could, indeed, as the Court of Appeals observed, be used consistent with the recorded restrictions either for site-built or mobile or prefabricated homes. It is apparent, however, from the recorded restrictions placed on the land, that Gackler expected to market the back lots for mobile or prefabricated homes. The placement of single-wide prefabricated homes on eleven lots before the change in zoning substantiates that purpose.
After eleven lots were devoted tо the single-wide use, the remaining back lots were in a subdivision that had taken on the ambiance of a single-wide prefabricated home subdivision. The presence of single-wide prefabricated homes in the subdivision might be a positive factor for a potential buyer interested in purchasing a lot for a single-wide prefabricated home, but might be a negative factor for a potential buyer who might otherwise be interested in purchasing a lot to construct a site-built home.
All appear to agree that while the back lots could indeed have been used for site-built houses, and might have been saleable as sites for site-built homes if the price of the lots were reduced, they were more valuable if they could be used for a single-wide prefabricated home. Inherent in the concept of a vested right in a nonconforming use is that the landowner is not limited to the value that
B
The asserted justification for the twenty-four-foot-wide requirement is aesthetics, not health or safety.16 Implicit in that justification for requiring a width greater than fourteen feet should be recognition that once a subdivision has taken on the character of a single-wide prefabricated home subdivision, the remaining lots will be more readily saleable for single-wide prefabricated homes than for double wide or site-built homes.
Where land has been subdivided and improved as sites for single-wide prefabricated homes, there have been substantial expenditures for land improvements, and single-wide prefabricated homes have been placed on the land before a change in zoning, the land developer has established a vested right to use all the lots so subdivided and improved as a nonconforming use.
Land is developed for a specific use or market. Roads and other costly improvements are installed on the basis of existing zoning because zoning is a major factor in deciding whether the economics justify making any improvements at all. Just as an owner or builder relies on the existing zoning in commencing construction of a building, expecting to be able to use it upon completion for a particular use, a land developer, in constructing roads or other improvements, also relies on existing zoning
When Gackler began substantial construction of the road and other improvements on the basis of the existing zoning, which permitted sale of the lots for use as sites for single-wide prefabricated homes, it made the kind of substantial expenditure that requires a finding that a vested right to a nonconforming use of the back lots was established.
IV
The majority opinion states that because the road, sewer and other improvements to Gackler‘s property made the back lots “as suitable for ‘dwellings’ under the ordinance as they are for single-wide mobile homes,” there is “no concrete manifestation that development of the plat was dedicated in its entirety to the use as sites for single-wide homes.”17 (Emphasis in original.) It is stated, similarly, that the improvements “rendered the lots in the plat equally suitable for the placement of single-wide mobile homes and conventional dwellings” and therefore the improvements “do not constitute work of a substantial character which makes apparent an actual use of the plat as a single-wide mobile home plat.”18 It is said that Gackler is seeking “preservation of an option to sell the unsold lots as sites for future nonconforming uses”19 (emphasis in original) and that “the use of the entire plat as a single-wide mobile home
A
The nature of sewer, water, and road improvements is that they may be adapted to more than one use. Sewer and water mains and roads are needed for commercial, industrial, and residential uses. It is not a sufficient response to a land developer who has made expenditures for such improvements in reliance on existing zoning to say that the improvements have made the land as “suitable” or even “equally suitable,” however that might be defined, for a use consistent with the change in zoning as a use permitted under the former zoning.
Suppose a foundation for a high-rise office building is completed before a change in zoning. Or that sewer or water mains and roads are installed before a change in zoning increasing minimum lot size from 80 to 120 feet. A foundation for a high-rise office building might and probably would be suitable for another use, say a high-rise apartment building. Sewer and water mains and roads constructed when zoning permits 80-foot lots are suitable (or equally suitable) for 120-foot lots. See Wood v North Salt Lake, 15 Utah 2d 245; 390 P2d 858 (1964), discussed in n 13.
Construction of those improvements might and most likely would not, however, have been economically justified where the land so improved is located if an apartment house must be constructed on the foundation rather than the contemplated office building or if the minimum lot size is 120 feet rather than 80 feet.
Suppose the community changes the minimum
Suppose the community decides, after sewer, water, road and other land improvements have been made, that there is a need for low-cost housing, and changes the zoning so that in the future homes cannot be built on the land so improved having a floor area in excess of 1,000 square feet. Again, from an economic standpoint, the developer might nоt have developed the land at all if that limitation had been imposed before he made his investment.
A developer, whether building structures above the ground or making underground or surface improvements, decides initially whether to invest at all in part on the basis of existing zoning. Just as a landowner might not invest in sewer or water mains or roads if the zoning provides for a minimum of 120-foot lots, a minimum of 1500 square feet, or a maximum of 1000 square feet, and the developer of a high-rise office building might not have proceeded if he could only build a high-rise apartment building, so too Gackler might not have proceeded to develop the back lots or the subdivision at all with road and other improvements unless it could market the back lots as sites for single-wide prefabricated homes. Gackler‘s investment-backed expectation is as much entitled to protection as a lot developer confronted with a
Until a home is actually under construction, no lot developer can make “apparent”21 at the site an actual use of a lot. Until construction is under way, he could bow to a requirement increasing lot size from 80 to 120 feet, minimum floor area from 1,000 to 1,500 square feet, or establishing a maximum floor area of 1,000 square feet. Requiring an “apparent” actual use of each lot would mean that the investment-backed expеctations of a lot developer cannot, until a home is actually under construction, give rise to a vested right in a use permitted when the investment is made.
B
Gackler‘s effort in this litigation to secure the right to sell the back lots as sites for the construction of single-wide prefabricated homes has been characterized in the majority opinion as an effort to preserve an option to sell the unsold lots as sites for “future” nonconforming uses. Whenever a structure is under construction and has not been completed before the change in zoning occurs, the proposed use will be inchoate at the time the change in zoning is enacted. Merely because the use has not come into fruition does not constitute it a “future” nonconforming use.
The nature of land development is such that unsold lots will, in a sense, always be sites for future uses. This Court cannot in principle justifiably deny to land developers the same protection of their expenditures made on the basis of existing zoning as is secured to persons who make land improvements above the ground. Merely because a land developer might change the contemplated
C
While a high-rise office building developer would have plans and a building permit showing that he intended to construct an office building, a land developer will be able to point to other evidence—as can Gackler—of his intention to use the land for a use permitted by the former zoning no longer permitted as a result of the change in zoning.
Gackler‘s intention to use the entire plat as a single-wide prefabricated home plat did not rest solely within its contemplation. Single-wide prefabricated homes had been placed on eleven back lots by the time the change in zoning occurred. The recorded restrictions permitted construction on back lots of prefabricated homes and did not permit the construction of prefabricated homes on the lakefront lots. Gackler, of course, might have restricted the use of the back lots to the construction of prefabricated homes, but that would have been, in a sense, bootstrapping.
It is, I think, clear that Gackler planned the development of the back lots with prefabricated homes when it recorded the restrictions. Be that as it may, when it sold eleven lots for the construction thereon of prefabricated homes, it gave the area the ambiance or character of a prefabricated-home subdivision. Gackler had both invested in
D
The underlying rationale of the vested right/nonconforming use exception is that a property owner should be protected in making an investment on the basis of existing zoning to improve the land. Many nonconforming uses could be adapted by the expenditure of money, and some without any financial expenditure, to a use consistent with a use permitted following the change in zoning. Nevertheless, the owner is not required to change the use or to incur any financial loss.
A dwelling house in a residential neighborhood might have been converted into a small neighborhood store before there was any zoning. The store could readily be converted back to a dwelling. The owner is not required to do so merely because the structure is suitable for use as a dwelling and could be readily reconverted for that use.
Gackler‘s selling experience indicates that it will suffer an economic loss if required to sell the back lots in conformity to the change in zoning. Instead of the price obtainable if the back lots can be sold as sites for single-wide prefabricated homes, it will obtain a lesser amount upon their sale for site-built homes. There is no difference in principle between requiring Gackler to reduсe the price of the lots so that they can be sold for the construction of site-built homes than in asking the owner of any other nonconforming use to adapt it so that it can be used consistent with the change in zoning.
Gackler is asked, as might the owner of any nonconforming use, to take an economic loss after
All such changes could be made. It is just a question of money. But that is what vested rights/nonconforming uses are about—money, the owner or land developer‘s money. If one focuses on the concept that an investment made on the basis of existing zoning should be protected, one will not indulge in artificial distinctions that ignore the underlying rationale of the vested right/nonconforming use exception.
E
A land or lot developer should be permitted to use the property for a use permitted when improvements are made unless22 the court can properly find that the investment was made without regard to the zoning. This Court has no basis for concluding that Gackler would have constructed the road and other improvements if the back lots could not have been sold as sites for single-wide prefabricated homes.
Gackler‘s selling experience would suggest that
We would reverse and remand for further proceedings consistent with this opinion.
WILLIAMS, C.J., concurred with LEVIN, J.
ARCHER, J., took no part in the decision of this case.
Notes
In Blundell, the court explained,
The judge referred to this Court‘s decisions in Ed Zaagman v City of Kentwood, 406 Mich 137; 277 NW2d 475 (1979), and Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974).Preliminary contracts or work which is not of a substantial nature is not sufficient to establish a vested right. The mere purchase of property with intention to devote it to a use is not sufficient in spite of preliminary work, such as clearing, grading and excavating, if that work is not of a substantial nature, or if the owner has not incurred substantial obligations relating directly to the use of the property. Appellant has failed to meet his burden of proof to establish a permissible nonconforming use for trailer spaces in Lots 26 through 44. That use would constitute an extension prohibited by the zoning ordinance. [258 Ark 134. Citations omitted; emphasis added.]
Justice LEVIN in this case would find the existence of a nonconforming use by focusing on the right of a developer to be protected in his investment (which we understand to be the original investment) made on the basis of existing zoning. In doing so, the rights of the developer are elevated over the interests of the community at large. This concept would permit developers to freeze existing zoning by the fact of their initial investment—a notion that approaches the highly suspect practice of “spot zoning.” See, generally, McQuillin, Municipal Corporations, § 25.83, pp 242-250. (The legislative intent “in authorizing comprehensive zoning is reasonable uniformity within districts having in fact the same general characteristics and not the marking off, for peculiar uses or restrictions of small districts essentially similar to the general area in which they are situated. ... Thus, singling out of one lot or a small area for different treatment frоm that accorded to similar surrounding land indistinguishable from it in character, for the economic benefit of the owner of that lot or to his economic detriment, is invalid ‘spot’ zoning.“) Id., 242 (emphasis added). See also SBS Builders, Inc v Madison Heights, 389 Mich 323; 206 NW2d 437 (1973).
Gackler Land Co, Inc v Yankee Springs Twp, 138 Mich App 1, 11-12; 359 NW2d 226 (1984).This act shall not be construed to prohibit a municipality from enforcing its local ordinances or from taking any other appropriate action to protect the public health, safety, or welfare as authorized by law or its charter. [