The Michigan Court of Appeals recently upheld the Village of Cassopolis’ condemnation of a commercial building, despite finding that the Village used improper procedure to condemn and demolish the building.
The Village served a condemnation notice on the property owner under the State Construction Code Act, advising that the property owner’s building was significantly deteriorated and fit the International Property Maintenance Code (IPMC) definition for demolition. The notice also advised the property owner to take immediate action or the Village would secure the building and hire a demolition contractor.
The Village then used a different procedure (loosely based on the Dangerous Building Code provisions of the Michigan Housing Code) to approve the demolition of the building. Despite the fact that the property owner protested at two Village council meetings and submitted a written protest, the Village denied the property owner’s appeal and demolished the building.
The property owner sued the Village. The circuit court granted summary disposition for the Village, holding that the court lacked jurisdiction to hear the case and the Village had governmental immunity.
The Court of Appeals upheld the Village’s demolition pursuant to governmental immunity, despite finding that the Village had used improper procedure to demolish the building.
Please contact a BSLTS attorney if your municipality intends to commence the dangerous building process or enter condemnation proceedings under the State Construction Code, to make sure you are following the required process.
Patton v Village of Cassopolis and Kevin Gillette, Court of Appeals, case no. 301754, unpublished, 1/24/12
The Michigan Court of Appeals recently upheld a Bay County circuit court’s order which eliminated a property owner’s non conforming commercial use of a residentially zoned property.
The Woys’ property was a legal non conforming use, as it was residentially zoned but used as a junk yard. Beginning in 1983, the Township sought injunctive relief to prevent the property owner from bringing additional heavy equipment onto the property and from expanding commercial activities on the property.
Over the next several years, the Township returned to court repeatedly to show cause the property owner regarding the property owner’s failure to comply with the circuit court’s order. In 1999, the trial court issued an order that provided, in part, if the property owner did not comply with the court’s order regarding use of the property, “. . .the property owner shall cease and desist from any commercial operations or storage of any material not presently permitted under the zoning ordinances as if a nonconforming use did not exist.”
In 2009, the Township requested another show cause hearing to determine if the property owner was in violation of the trial court’s order. After a site visit and taking testimony, thge trial court determined that the property owner had brought new materials onto the property, in violation of the court’s order. The circuit court ordered the property owner to immediately cease and desist from using the property for commercial operations or storage.
The Michigan Court of Appeals upheld the circuit court, finding that the circuit court had the authority to terminate the property owner’s nonconforming use through a contempt order. The Court of Appeals held that the circuit court’s suppression of the nonconforming use was within the court’s remedial powers, as the property owner had improperly expanded the nonconforming use.
Charter Township of Portsmouth v Jerry L. Woys, et al. No. 302319, Court of Appeals, unpublished, February 9, 2012.
On October 27, 2011, the Michigan Court of Appeals issued an unpublished opinion holding that the expansion of a non-conforming sign was a violation of the township zoning ordinance and a nuisance per se.
Defendant sign company removed a portion of a non- conforming billboard and replaced it with a new sign face that was still non-conforming in terms of the township zoning ordinance, but which decreased the level of non- conformity. The defendant did not seek township approval before updating its non-conforming sign. The township brought suit, asserting that the non-conforming sign was a violation of the zoning ordinance and a nuisance per se. Defendant sign company counter-claimed, alleging that the township’s sign regulations (spacing) violated the First Amendment and that the zoning ordinance did not provide standards for the zoning administrator’s determination on changing non-conforming uses.
The trial court held for the township, finding that the defendant’s sign was non-conforming in three respects: sign surface was too big, sign was too tall and sign was located too close to another sign. The trial court also found that while the new sign was in greater conformity with zoning ordinance requirements than the previous sign, the sign was still non-conforming as to spacing distance from other signs. The trial court held that the revised sign was in violation of the zoning ordinance and was a nuisance per se. The trial court ordered the revised sign removed within 21 days and dismissed Defendant’s counter claim.
On appeal, defendant argued that Michigan law prohibits the township from restricting the modification of a non-conforming use or structure if the modification lessens the non-conformity. The Court of Appeals, however, found this argument to be without merit, noting that Michigan law does not authorize any improvement to a non-conforming use, exclusive of the application of the pertinent zoning ordinance. Notably, the township’s zoning ordinance did not prohibit maintenance or modernization of a non-conforming sign if the proposed improvement did not exceed 30% of the replacement value. Defendant’s cost of updating its billboard, however, exceeded 30% of the replacement cost. Accordingly, it was a violation of the zoning ordinance and a nuisance per se.
Additionally, the Court of Appeals upheld the trial court’s striking of a sentence of the zoning ordinance that authorized the zoning administrator to make a determination on non- conforming uses, as there were no standards included to guide the zoning administrator’s decision. The Court of Appeals also upheld the township’s spacing requirement for billboards, noting that the regulation was properly tailored as a restriction on commercial speech.
Township of Blair v Lamar OCI North Corporation, 10/27/11, unpublished