*1 442 Mich HEATH TOWNSHIP v SALL (Calendar 3). 12,1993 Argued January No. Decided Docket 92479. No. 22, June 1993. Allegan Township brought Court Heath an action in the Circuit Sail, against Joyce enjoin from Gerald W. and to them Sail constructing park ground a mobile home that the land on zoning only single-family had reverted residential following zoning grant a referendum on board’s prior request multiple- the defendants’ to rezone the land court, Corsiglia, J., family George a residential. The R. issued injunction allowing preliminary enjoining occupancy, but con- permanent injunction at the risk. sub- struction defendants’ A granted sequently a was after the to establish defendants failed Murphy, P.J., prior Appeals, nonconforming The use. Court JJ., Sawyer, in an Holbrook, Jr., and D. E. and reversed curiam, opinion finding by per that sufficient action taken was change the defendants the character of the land while park permitted a as to construction of mobile home so rights nonconforming grant prior use of vested and to create a 126375). (Docket park property a as mobile home No. township appeals. opinion joined Justice Mallett, an Justice Chief Levin, Cavanagh, Brickley, Boyle, and Justices Supreme Court held: requisite change prove tangible The defendants failed to prior in use. establish particular property 1. Use of that does conform to lawfully date of restrictions but that existed before effective permitted use. the restriction as a use, property engage To such must in work establish owner preparation for an use of the substantial character actual premises materially objectively changes the land established, subsequently nonconforming use itself. Once reasonable, restriction, although not divest enacted will right. owner of the vested point date is A restriction’s enactment the critical determining nonconforming use this when a vests. In 1986, 2, February October construction between disapproving multiple-family the date the referendum Opinion of the Court use, germane. Because the defendants’ activities residential substantial, during period, aggregate, were not cognizable preexisting nonconforming legally use was not estab- lished. *2 requisite 3. The defendants also failed to obtain the mobile building permit A or mobile home
home before referendum. however; permit rights, alone does not confer vested actual begin. An of whether construction construction must evaluation necessarily subjective vary is substantial is and will from case to case.
Reversed and remanded.
Griffin, concurring
part
Riley,
joined by
in
Justice
Justice
dissenting
part,
petition
and
stated that the
for a referen-
5.2963(12)
pursuant
dum
to MCL
subse-
zoning designation granted
quent
to the defen-
reversal of
precluded
property expectations
dants
the establishment of the
good
nonconforming
necessary
faith
to constitute a
use. To
by permitting
hold otherwise would eviscerate the statute
developers
requirements by quickly engaging
to circumvent its
nonconforming
construction sufficient to establish
before a referendum
be held.
purpose
nonconforming
protect
of the
use doctrine is to
expectations
imposi-
property
prior user and to avoid
of a
hardship
property.
tion of
on owners of
When
parcel
property,
presumed
the owner is
to under-
rezones
petition might
thirty days
that a
filed within
stand
reversing
township’s
lead to a referendum
decision.
could
that the
In this
because the defendants understood
favora-
subject
zoning designation
granted
ble
were
was
revocation,
nonconforming
They
use could be established.
no
possibility
quick
continuously
revision in
were
aware of the
petition
impending
and the
because
referendum, and,
requisite good faith for a
thus lacked the
nonconforming
use could vest until
use. No
expired
petition
thirty-day petition period had
if no
after the
filed,
petition
until
if a
was filed.
was
after a referendum
(1991)
App 716;
Mallett., Opinion of the Court prior noncon- established whether defendants forming home their as mobile use of passage rejecting park of a referendum before Ap- rezoning proposal. The Court of defendants’ peals affirmatively. defen- We hold that answered change prove requisite tangible dants failed in the to establish a use.
i
Joyce
pur
1985,
Sail
defendants Gerald
approximately
16 acres of land
chased
Township
building
a mobile
intention
purchase
park
property.1
date,
on the
On the
home
the
zone)
(single-family
land
zoned R-2
residential
parks
home
within which mobile
were
permitted.
however,
On October
*3
township
granted
request
to
defendants’
board
(multiple-family
to
resi
rezone the
R-3
dential). Subsequently,
opposed
residents,
to
the
change, petitioned
for a
the
referendum
5.2963(12).2
pursuant
125.282;
MCL
MSA
price ($53,500)
purchase
Defendants contended that
the
$26,000
ing. They
Township
R-3 zone.
tion
to so
restrictions. Detroit
anticipated
the
rezon-
more
the land was
without
than
worth
willing
pay
price
the excessive
the Heath
were
because
plan
property to
a future
land use
showed the
be within
Note, however,
purchase
that the
an inten-
give
particular purpose
to use it
does not
the owner
for
employ
plat
subsequently
in violation of a
enacted
the
Wixom,
673, 685;
City
Edison Co v
382 Mich
(1969).
by majority located voters voting villages township of cities and outside limits Opinion of the Court February 2, 1987, residents voted local On single-family original property to its return during However, time classification. residential referendum, and the the board’s vote between preparing approximately spent $18,000 defendants devel- The work included construction. the site for procuring plans, oping sev- detailed excavating permits for future eral plumbing, local drilling pipe, purchasing a water sewer installing constructing wellhouse, four test well, wells, removing topsoil, excavating roads, clear- for survey. obtaining topographical ing trees, ap referendum, defendants filed an Before park plication home state for a mobile with the application was returned with Their initial license. April request 1987, In for additional information. a defendants resubmitted unfavorable application after the July, 1987, referendum vote. late plaintiff orally notified defendants and the state park home it intended to issue a mobile that permit point, At this defen to the defendants. August began further construction.4 On dants township a letter to defendants wrote constructing insisting they stop the mobile park. refused, the After defendants home injunctive relief. filed an action enjoined Allegan occupancy, Circuit Court construction "at their but allowed from Relying Co, Inc v on Gackler Land risk.” own Twp, Springs 562; 398 NW2d Yankee supplies regular reasonable election which thereon at the next time for ballots, any special printing proper or at notices and purpose. election called for that *4 not inform the state of the that defendants did Plaintiff contends state, outcome, i.e., they the or at least remained misled referendum silent when forthcoming. they should have been spent August February an defendants Between construct, realty $15,000 equip prepare, the for use additional park. home as a mobile op the Court held that defendants’ (1986), the trial court insufficient referendum were the
actions before a that did not establish operations preliminary the court Accordingly, use. nonconforming prior controlled, and the referendum opined park home as mobile that use of on Ultimately, ordinance. violate would granted 8, 1990, trial court February injunction. permanent trial court’s Appeals reversed The Court decision, stating: bar, agree In the case at we changing toward they took sufficient action
that the character ted zoning permit- of the land while park on the of a mobile home rights grant the defendants vested parcel so as to prop- nonconforming use of the prior and create a park before the electorate’s home erty as mobile Specifically, zoning to R-2. decision to return plans survey and site preparation while would not be clearing of trees and debris and the use, prior to create a sufficient prepara- beyond mere conduct went defendants’ tion for installed additional excavated mobile tion constitutes They change property. in use well, drilled four a commercial water wellhouse, wells, test constructed roads for the the construction of ac- park. satisfied that home We are change land tangible goes beyond and construction excavation mere the non- preliminary operations to establish 716, 719-720; 478 App conforming use. [191 (1991).] NW2d the Court Township appeals Plaintiff Heath rights vested granting defendants decision Appeals create a sufficient park. home We reverse. a mobile *5 Sall v Opinion of the Court
II nonconforming in prior is a vested use A property particular does not con the use of protected zoning be restrictions, but form to regula zoning lawfully before it existed cause City Warren, 387 of v date. Dusdal tion’s effective (1972). In other 354, 359-360; 196 NW2d Mich before that existed words, lawful use it is a the zon after restriction, ing regulation’s continues and therefore Generally, to establish enactment. nonconforming prior must use, owner a engage done character’ of a 'substantial
in "work preparation by way use of the for an actual Twp Beardslee, premises.” Bloomfield (1957). a nonconform Once 296, 307; 84 NW2d subsequently ing established, enacted use is although reasonable, will restriction, right. of the vested owner divest nonconforming prior supra. use is Thus, Dusdal, principle zoning’s general exception an to certain localit should be confined certain uses ies.5 recently the standard examined
This Court establishing Gackler, su- approximately plaintiff platted pra. There, consisting fifty- plat twenty of a 103-acre acres prefabri- zoning permitted mobile, lots. The four cated approved township homes. After and site-built implemented plat, restrictions were partially- uses has been law of The common 5.2961(16X1) provides pertinent 125.216(1); codified. part: existing premise zoning and lawful at . . . The lawful use of a ordinance, an or in case of
the time of enactment
ordinance,
the amend-
then at the time of
of an
amendment
ment,
although
not conform
that use does
continued
provisions
or amendment.
ordinance
Opinion of the Court
excluding
lots
from twelve lakefront
mobile homes
Later,
enacted a
the site.
on
ordinance
restricting
homes to mobile
mobile
single-wide
parks.
time,
mo-
At
eleven
home
bile homes
occupied
The town-
restricted lots.
permit
ship
mobile
the ordinance
amended
"dwelling”
any
meeting
the definition
homes
zoning
*6
or modular
site-built
where
classification
permitted.
single-family
The effect
residences were
single-wide mobile
was to exclude
of the ordinance
plaintiff’s
the
met
lots unless
homes from
challenges,
dwelling. Among
other
definition
plaintiff
nonconforming
that he established a
contended
single-wide
mobile
use as
home
plat,
constructing
surveying
plat by
road,
grading
completing
erecting monuments,
and exca-
installing
homes.
work,
eleven mobile
and
vation
plaintiff
holding
to establish a
that the
failed
nonconforming use,
we stated
a 'substantial
character’
must be work of
"there
actual use of
preparation
for an
by way
done
Beardslee, 349
Twp
premises.” Bloomfield
(1957).
296, 307;
The actual use
critical ing Advertising, Algoma Dingeman Inc v use vests. (1974).6 Twp, Con 89; NW2d regulation’s undertaken after struction determining inapposite whether enactment property changed tangibly the land. To hold owner encourage noncompliance with otherwise would import disparage regulation and effect case, defendants In the instant of a referendum.7 early 13, 1986, that a as October understood as *7 likely. possible, fact, In less if not referendum petitions they later, knew that month than one being referendum. to initiate a circulated were proceed Nonetheless, defendants decided proposed home their mobile the construction of park. February that the 2, learned defendants On returning passed, to its referendum Accordingly, original con R-2 classification. and between October struction February 2, 1987, invali the date the referendum 6 394, 396-397; Lansing Dawley, 225 City 247 Mich NW v See also (1929). community vesting cer- propriety policy residents they regulation regarding powers matters about which of local tain unique questioned. of their deeply Because interested cannot be are knowledge involvement, competent judge citizens be more authority. any v Battle Creek See Stadle matters than central such (1956). 64, 70; Twp, 346 Mich 77 NW2d 442 Mich Opinion op the Court zoning, germane the current the R-3
dated inquiry. posit they a vested established Defendants park
nonconforming February survey, installing drilling before as a mobile home (1) obtaining topographical 2, 1987, (3) (5) (2) removing topsoil, clearing trees and (4) excavating roads, wells, four test (6) building well, and a commercial water independent each examination of An a wellhouse. activity necessary. survey8 obtaining topographical First, example property preparatory insufficient of an is a classic supra, operation. fact, Gackler, In "surveying expressly the land” as denounced we preliminary City operation. In of Lans Id. at 575. ing Dawley, 394, 397; 225 NW (1929), nothing did "[defendant] this Court stated He went no character. substantial survey plans and cause farther than to order to be made preliminary work was of the lot. This to erect not sufficient to create vested building.” Second, of this under the facts pre removing topsoil clearing are also trees and supra, liminary Gackler, we also ventures. buildings” as an insuffi of old listed "the removal Clearing activity. preparatory Id. at cient removing topsoil no more substantial are trees and removing permanent such as structures than buildings. result, work do not constitute As a character.” of a "substantial rely of four Third, on the installation 4, 1986. Because the sole on November test wells purpose test wells was to determine of these appropriate an flow to locate direction of water nothing sewage system,9 .place more for a enduring, they preliminary in nature. are also any adja- survey ground topographical elevations and indicates A property. on or near the cent structures *8 regarding hearing, testified defendant Gerald Sail At a show cause purpose of the test wells: Sall op the Court in furtherance Fourth, contend that topsoil they roadway construction, removed subgrade 19-20, deposited on November sand regarding helpful testimony road- 1986. The expert way who of a defense was that on the site. worked
Well, strip topsoil got to you’ve first that subgrade and sand off for a you then gravel goes level the on, blacktop it. you then later on unfamiliarity road- with admitted Because of our greatly way construction, have benefited we would necessary regarding testimony from further roadway. completion steps of a residential assistance, determine it is difficult to Without putting removing topsoil a sand down whether Now, you Q. you ’86 had some that in the fall of also testified you you that wanted to that done and testified test wells were flow; any reasons were there other find out about the water you area? do a test well for that that would A. Not that I can think of. ' Q. you and it was shown If had done a test well bad, going quality affected ahead would that have water project? quality, not to test the water A. These test wells were find way flows so that we could which the water are to test the sewage system. the location for similarly expert testified: A defense Now, generally have Q. wells and we talked about we have installed, were four test wells were from Mr. Sail that heard your direction? those installed Yes, installed to determine four monitor wells A. those were survey preliminary hydrologic to determine do kind of a —to property; ground that is used on the water flow the direction away going to flow the water is the direction that to determine keep sewage disposal system, so that we can from to other system not be detrimental in an area which will supply properties wells. or water *9 442 ' Opinion of the Court subgrade charac- of.a "substantial work constitute expert’s testi- Nevertheless, the defense as ter.” mony implies, permanent very least, assume, that a we gravel, grade, requires such road asphalt shell, or concrete. like a durable outer and yet com- Therefore, had not defendants because conclusive the more cumbersome menced stages construction, road excavation work their prior insufficiently constitute a substantial was nonconforming use. rely
Fifth, on the construction deep well five-inch, commercial water 184-foot purpose of the well 1986. The October about quality quantity of the to determine the wells, However, the four test unlike water. site’s to eventu well was intended the commercial water permanent park’s ally the mobile home serve as Finally, a concrete defendants built source.10 water eight November, foot 1986. The block wellhouse entirely high self- insulated and structure was Although testimony indicate, did not so contained. wellhouse, construction of of the sound because permanent intended for that it was we assume perpetual Thus, nature use. intended because commercial water future use of both the tentatively wellhouse, conclude we well and that they may of a "substantial constitute work changed tangibly the land. that character” Michigan that there must be is clear case law preliminary preparation beyond It use. establish present property, present state of the 2, 1987, February the wellhouse noted that on It should be plumbing, surely adequate plumbing. it Had it contained contained no determining sufficiently to be considered substantial would whether without Nevertheless, even use was established. reluctantly necessary plumbing, conclude that we enough consid- to be the wellhouse was substantial construction of ered. Opinion op the Court put property use, to a future that intention to This examination of defen must be the criterion. the commercial activities indicates dants’ perti individually are water well and wellhouse light activities, nent. Neither of these requires, park total construction a mobile home sufficiently satisfy burd substantial defendants’ A review of the record evinces that defen en.11 proving have not the burden of dants borne *10 of a character” toward construc work "substantial park predated the referen tion of a mobile home election. dum aggre
Additionally, activities, in the defendants’ supra, gate, Gackler, In are not substantial. plaintiff Court held that failed to establish a prior nonconforming despite fully a con graded road, monuments, structed erected plats, of eleven excavated and installation mobile Comparatively, in homes. the instant topsoil deposited a sand defendants removed subgrade, complete construction, but did not soil, and cleared trees and removed but did not grade fully property; and, or excavate the unlike occupied Gackler, on the there were no trailers property. Clearly, the construction undertaken in than that in the Gackler was more substantial present However, in case. this Court Gackler re recognize use.12Accord fused to analysis ingly, on basis of an individual Gackler, find that activities and we defendants’ determinative, Gackler, Although expended the amount is not see $18,000 supra, spent approximately of an defendants estimated $46,000 $64,000 required occupancy. would before The additional have electricity, sewage system, gas, telephone, spent providing on been water, among other services. present Admittedly, Gackler differs from the case. Unlike Gack- ler, plat, of a mobile home the instant case concerns the construction Nonetheless, development platted we find not of a subdivision. Gackler instructive. 442 Opinion of the Court cognizable legally establish a
defendants failed to preexisting use.
IV failed to commence con Defendants character,” of a failed struction "substantial permit the referend to um.13 As a mobile home before obtain applied previously noted, for defendants permit home in 1986. Because a mobile December application’s deficiencies, it was returned to April information. defendants additional application with defendants resubmitted informing authorities of referen out dum. state
Ultimately,
July 1987,
months after
five
passed,
home commis
referendum
the mobile
building permit.
granted
verbal
sion
Under
Michigan
building permit,
law,14a
or
case
operations,
counterpart,
permit to commence
its
procuring
important
an
factor
"vested
significance
right.”15
permit
is embodied
Dingeman, supra:
city
permit
issues a valid
Once
applicant,
applicant
every
has
reason and
an
*11
19.855(13) (now
125.2313;
13MCL
MSA
renumbered
19.855[113]) provides:
(1)
park
person
A
construct a
home
shall not
mobile
permit
park
obtaining
without
mobile home
issued
seasonal
department.
by the
(2)
permit
may begin upon
granting
Construction
to
department.
construct
14
385;
(1991);
Twp,
v
prior nonconforming February 2, 1987. use before construction was not of a "substantial char Their permit.17 acter,” nor a mobile home did obtain Accordingly, and to the we reverse remand Appeals issues Court of determination previously not resolved. C.J.,
Cavanagh, Levin, Brickley, and and JJ., J. Boyle, Mallett, concurred with (concurring part dissenting J. and Riley, part).
i agree majority no I with the noncon- While forming con- use was established defendants’ struction, I also hold that defendants did would nonconforming possess not the citi- because petition municipality, by zens reversing zoning designation pursuant to MCL 5.2963(12), precluded the 125.282; MSA establish- good property expectations faith ment of nonconforming necessary To constitute a use. otherwise would eviscerate the statute hold permitting developers require- its to circumvent by quickly engaging suffi- ments cient referendum construction use before a to establish pursuant to the act be held.
ii
A
Michigan,
use doctrine
by developers
encourage
Today’s holding
read
should
arbitrary
completion. Important
percentage of
frantic race toward an
factors to be considered are whether
developer
permit,
obtained
developer
further
what and when the
was
knew
what
necessary
project.
complete
*13
449
Opinion by Riley, J.
permits
a citizen to utilize
in
property
contradic
tion of a zoning ordinance
if the
property
utilized for
purpose
before the enactment
of
Warren,
ordinance. Dusdal v City of
387 Mich
354,
(1972).
359-360; 196
778
NW2d
The citizens of
Heath Township,
through
referendum,
certainly
possessed the right
to reject
zoning
ordinance
question,
"but
this right was subject
to vested
interests
. . . .”
City
Lansing v Daw
property
ley,
394,
(1929).1
247
396;
Mich
strictly construed.4 gradual public policy the aim of nized that Central uses. South elimination Improvement Shores, v St Clair Ass’n (1957).5 158; NW2d of non- the doctrine
Michigan has codified 125.216(1); conforming uses 5.2961(16)(1), which mandates: building and of of a or structure
The lawful use existing and premise lawful land or a [sic] ordinance, the time the case of an amendment the time of the enactment ordinance, then at of an *14 amendment, may be continued provi conform with the although that use does not amendment.[6] zoning of the ordinance sions municipali- of decisions zoning are the Not the of by ties modified doctrine 5.2963(12) uses, mandates a MSA MCL decisions: popular upon check those following petition passage of the days 30 the Within ordinance, signed by number of registered residing in the qualified and voters township the outside the limits of cities portion of villages equal to not less of the total than 8% governor, for all candidates the vote cast last gover- preceding general election at which Supreme widely shared The Court of Maine enunciated ["]Nonconforming it said: uses are thorn' the view when longer perpetuated any proper zoning of and should not be side necessary. policy of is to abolish nonconform- than ing justice permit.” [Anderson, speedily n 3 uses as as will 6.07, 465-466, pp quoting Sprague, supra, 219 A2d Windham § (Me, 1966).] 552-553 McQuillin, jurisdictions 8A of concur. See n The consensus Anderson, 6.07, 25.183, 22; supra, pp supra, p n 3 464-465. § § 5.2933(1). 125.583a; also 6 See Riley, J. elected, township nor was the be filed with township requesting clerk the of an submission part ordinance or residing limits of cities and Upon part shall of an ordinance to electors portion township in the outside
villages approval. for their petition, an ordinance or passed by of an board ordinance it rejected not be invalidated until majority registered .... voters Through popular the mechanism referen dum, Legislature placed has resolution in unincorporated municipal decisions areas people.7 the will of the The referen directly " dum, therefore, should respect 'entitled not be abridged by processes withdrawal from [its] ” of matter with which intended to deal.’ is] [it Twp, Stadle v Battle Creek 64, 69; (1956), NW2d 329 quoting McQuillin, Municipal (rev ed), 16.48, Corporations p 3d §
B At issue in the instant case is the con ancient tention the protection between individuals’ rights society’s power regulate property. More concisely, presents case rights interaction between individuals’ *15 protected the nonconforming use and by doctrine the to citizenry’s unpopular reverse Although decisions. evoking questions monumental involving governm the fundamental basis of our 7 64, 69; (1956), Twp, Creek Stadle v Battle 346 Mich 77 329 NW2d (rev quoting ed), 16.48, McQuillin, Municipal p Corporations 5 § 3d (" recognized 241 initiative and referendum are instruments '[t]he as government, widely great ”); of democratic used and of Lan value’ (1973) phear Twp, 645; Antwerp App v 214 66 NW2d (the "provides unincorporated statute of the inhabitants areas the accept proposed say reject final to or whether ordinance for lands”). unincorporated township 442 Mich by Riley, J. was a
ent,8 very narrow: specific inquiry the within the either created 125.282; MSA of MCL period thirty-day petition 5.2963(12), petition after the the before referendum? use doctrine purpose
The
expectations
to
the
protect
hardship
the
imposition
upon
of
user
avoid
Owens,
Penning
of
property.
owners
(1954). Hence,
355, 365;
NW2d
5.2963(12)
ex
preclude such
should
rezones
when
pectations
because
to under
presumed
of
the owner is
parcel
filed within
petition might
thirty
that a
stand
reversing the
that
lead to a referendum
days
could
pre
from this
township’s
apart
Even
decision.
recog
the
case the
sumption,
majority
in
instant
early
as
nizes
that
"defendants
understood
13, 1986,
possible,
referendum was
October
fact,
later,
one month
if not
less than
likely.
petitions
being
were
circulated to
they knew that
Hence,
Ante at
441.
defen
initiate
referendum.”
zoning desig
the
understood that
favorable
dants
impression,
Although
the basic issue faced
this
a case of first
struggle
simply
the historical
between
Court is
individual
lemma was
another version of
Indeed,
liberty
rule in America.
di-
and democratic
Founding
expressly recognized
the time of our
Fathers.
major
protection
property rights
one of the
The
of individual
undergirding
adoption
the
Hamil-
the
federal constitution.
forces
ton,
Kramnick,
(England: Penguin
Papers,
ed
No
The Federalist
Books,
1788])
(noting
[originally published
in
at 90
motivated,
part,
protect
rights
property).
constitution was
Yet,
government,
republican
guided by
form of
the establishment
a
was also
paramount
drafting
majority,
of.
our
the will of
fundamental
at
39-40,
Madison,
Papers,
supra
Nos
law.
Federalist
republican
(noting
on
254-265
that the constitution was founded
recognized
principles).
the fundamental
issue: "To
James Madison
good
rights against
danger
public
private
secure
faction,
spirit
preserve
. .
time to
and the
.
and at the same
of
form of
great object
popular government,
is then
which our
Id.,
Fortunately,
struggle
inquiries
are
No 10 at
directed.”
the inherent
non-
the instant case is resolved
limitations
conforming use doctrine.
*16
Opinion by Riley, J.
subject
expecta
any
revocation,
nation was
to
possessed maintaining
tion that defendants
zoning
merely
thinking.
desired
was
wishful
No
nonconforming use, therefore, could be established
continuously
because defendants were
aware of
quick
possibility
revision in
be
petition
impend
cause of the
and the
ing
Harding
Zoning Ap
referendum. Cf.
v Bd of
peals,
(1975);
73, 87;
159 W Va
building apartments. Appellants proceeded into four . . . peril incurring expenditures their own in reliance on the challenged permit. course, In the during instant defendants did not act an however, appeal; administrative did act while on notice that 5.2963(12) quickly could be utilized to reverse the township’s zoning designation. essence, permits the statute appeal zoning decisions; hence, citizens of a their officials’ reasoning Harding dispositive. Likewise, rejected developer’s attempt Kenner the court apply equitable estoppel prohibit municipality enforcing from newly enacted developer ordinance. The claimed that he had upon assurance, relied an enacted, official’s before the ordinance was it designation. would not affect his The court found his unjustified: reliance proposed [H]e aware that a new ordinance had been knew, was under consideration certainly .... He or reason- ably known, should have might the new ordinance might adopted proposed not be quite possible and that it was adopted it changes would be after which could include deletion provision [preserving zoning designation]. the favored [Id. at 868.] Similarly, defendants knew or should have known that a referen- 442 Mich Riley,. J. possess a noncon did not
Similarly,
*17
faith
good
the
they lacked
forming use because
"It
is
to avoid
finding.
only
for such
necessary
generally
except
zoning ordinances
injustice that
Mu
McQuillin,
uses.” 8A
existing
(rev
ed),
25.183, p 22
3d
nicipal Corporations
§
omitted).
(citations
Hence,
upon official
"[rjeliance
will not establish
nonconform
conduct
[upon
relies
ing
unless
the landowner
use
Anderson,
1
American
good
faith.”
conduct]
omitted).
(citations
3d, 6.13, p 478
Zoning,
Law of
§
faith, however,
seriously
un
finding
good
A
pro
"of a
a landowner
is on notice
dermined if
.
. .
.” Id.
change
zoning
in the
ordinance
at
posed
Indeed,
lacking if
requisite good faith is
480.
"[t]he
improvements which
proceeds
landowner
with
of an ordinance
adoption
proscribed by
will be
know is
Id.
pending.”
he knows or should
which
omitted).
(citations
fact,
begin
if
or
developers
In
after
notice that
construction
have
continue
changes
proposed,
they merely
have been
zoning
"
proceeding
'calculated risk’ in
undertake
good
not
relying
their construction
and [are]
non-adoption
on
absence
ordi
faith
Sandwich,
421,
124
v
NH
Biggs
nance.”
Town of
(1984).10
427;
shorter nonconforming use; result circumvents such a disagree Legislature. Hence, I intent majority’s "[t]he restric conclusion point in the critical deter enactment date is tion’s mining vests,”12 at use ante when a no nonconform hold instead that and would peti thirty-day ing until after the use could vest filed) (if petition period expired or no was had tion filed).13 (if petition was after a referendum holding unfortunate effect could have the Such improvements upon development delaying of newly Developers properties. often would zoned beginning thirty days construction, before wait awaiting re and those quired referendum would postpone The further.14 construction even Dingeman Advertising, proposition, 223 cited for this authorities (1974), 89; Dawley, Algoma Twp, NW2d Inc v supra 125.282; 396-397, application MSA do not involve the MCL 5.2963(12). applies only analysis very By very its narrow and nature 5.2963(12) 125.282; specific interplay to MCL between MCL MSA 5.2961(16)(1). 125.216(1); nearly every non MSA other Unlike conforming situation, instant case at no time use possessed expectations preferred that the ordinance reasonable subject change in If defendants not the immediate future. was then-existing zoning designation, land in with a utilized accordance 5.2963(12), 125.282; subject MCL MSA which was not zoning designation conforming altered, any prior subsequently then non likely would most be vested because defendants would expectation manufacturer possessed a that the use would continue. have For reasonable example, operating plant in con an industrial designation then-existing zoning subject formity with the that was 5.2963(12) to use the would have a vested zoning designation city if the then altered the to residential. On *19 hand, developer began other if a to construct subdivision on 125.282; petition pursuant property, 5.2963(12), MSA to MCL and voters filed rezoning, developer subsequently rejected prior nonconforming use because the would not have established expectations good necessary applica for the valid faith would be nonextant. tion of doctrine 5.2963(12) suspend Assuming MCL does not a new designation, developers proceed improvements could designation, pursuant to the new but such work would their risk. Opinion by Riley, J. course, wisdom of this policy, is not for this debate, honorable Court Legislature. but Griffin, J., Riley, concurred with J.