| Topic |
Question |
Answer |
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What is nonconforming |
What is nonconforming?
(March 31, 2003, updated May 10, 2006) |
A very important
concept with zoning, is that one can not outlaw something that already exists.
If a land use, building, or parcel already exists then it can continue.
These "grandfathered" things are called nonconforming uses, building or parcel.
To say something is a "legal
nonconformity" is redundant. If something does not comply with the zoning
ordinance it is one of two things:
1. A violation (the action to make it out of compliance
with zoning took place after the particular zoning regulation was adopted),
or
2. A nonconformity (the action to make it out of compliance
with zoning took place before the particular zoning regulation was
adopted).
There are three types of nonconformities:
A. A nonconforming building (the building is to small,
large, tall, invades setbacks, etc.)
B. A nonconforming parcel (the parcel of land is to
small, narrow, etc.)
C. A nonconforming use (the use is not an allowed use,
or possible special use, in the respective zoning district.
Zoning must provide for the nonconformity
to continue within certain terms which are supposed to be spelled out
in the zoning ordinance. The long term goal is for nonconformities
to go away --but that is a very long term goal. If a nonconformity
is really objectionable the local government has the option to buy it
to close it down or otherwise terminate it.
The Michigan Zoning Enabling
Act (P.A. 110 of 2006, as amended, M.C.L. 125.3101 et seq., effective
July 1, 2006) allows a local government to provide for the completion,
resumption, restoration, reconstruction, extension, or substitution of
nonconformities. This is a local option (it used to be a requirement for
township and county zoning, where it used to be townships and counties
"shall" provide for the completion...).
----Kurt H. Schindler
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|
Must allow expansion of nonconforming uses. |
Currently our zoning ordinance does not allow any variances
on nonconforming lots and nonconforming uses, to allow for expansion
of residential homes or new construction.
(Updated, May 10, 2006)
|
A court case decided June 2002 (
Century Cellunet v. Summit Twp, 250 Mich App 543) ruled that one must
allow for the expansion of an existing nonconforming use. The case
involved a cell tower. The tower was nonconforming. Someone
wanted to add more antennas to the tower. Township said "no" it
was nonconforming. Court ruled a community has to allow expansion
of nonconforming uses. Thus the township had to allow additional
antennas.
However the ruling in this court
case has been superceded by the Michigan Zoning Enabling
Act (P.A. 110 of 2006, as amended, M.C.L. 125.3101 et seq., effective
July 1, 2006) allows a local government to provide for the completion,
resumption, restoration, reconstruction, extension, or substitution of
nonconformities. This is a local option (it used to be a requirement for
township and county zoning, where it used to be townships and counties
"shall" provide for the completion...).
---Kurt H. Schindler and Gary Taylor
|
|
Lots in a Subdivision |
We have several
platted properties of about 25x100 lots from the 1920's. These are
now non-conforming properties based on their current zoning. His
question is what supercedes, original plats or current zoning.
(updated May 10, 2006) |
Just because
it is a lot in a subdivision, does not give the parcel any special dispensation
for complying with a zoning ordinance. If a parcel is too small, and
pre-dates zoning, then it is nonconforming. It does not matter if it
is a lot in a subdivision or a metes-and-bounds or Public Land Survey (PLS)
parcel outside of a subdivision. A nonconforming parcel can be used
as through it is a legal parcel.
Some municipalities allow the
zoning administrator to determine it is a nonconforming parcel and then
issue the permit. Some municipalities require nonconforming
parcels to be handled by the zoning board of appeals. Some
municipalities require the property owner show that they can not buy (for
a reasonable fair market price) adjacent property (and if they can then
the shall buy the adjacent land to get approval, and if they can not,
then approval is given). All of these, and possibly other approaches,
are proper. Which is used in your community should be spelled out
in the local zoning ordinance.
One township I am familiar with, for example,
says if a parcel is 15,000 square feet or smaller and is nonconforming,
they must go to the appeals board to show (1) they
can get well and septic approval, and (2) they could not buy adjacent
land (or that they bought adjacent land). If the parcel is bigger
than 15, 000 square feet, then the zoning administrator has authority
to handle it as a nonconforming parcel.
This same township defines
parcel as a lot or contiguous lots under common ownership (a common practice).
This is so if someone owns lots 3, 4, 5 of block B, that is, for zoning purposes,
one parcel. Selling a lot is spiting the parcel, which may create an
illegal parcel because it is too small.
Another thing this township does
in one zoning district is to say the minimum parcel size in the zoning
district is "XX,XXX square feet or the size of a lot in a subdivision
which was recorded prior to the effective date of this ordinance which
is still owned by the proprietor who received approval for the subdivision.
This was adopted because that township did not want to penalize a subdivider
who was still selling lots in a subdivision he created and that was approved
before there was zoning in the township.
---Kurt H. Schindler
As for new construction, in most
ordinances you will find language that says small, contiguous nonconforming
lots must be combined to meet zoning requirements if both owned by the
same person and a construction permit is applied for. "Zoning supercedes
original plat" in that sense. It is possible that a landowner could
raise a legitimate takings claim if, as a result of the too small lot
situation, the owner could not make any economically viable use of his
property. That's one of the things variances are for: to avoid takings.
----Gary Taylor
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|
Replacing building destroyed by act of God. |
If there is a natural disaster
(fire, flood, other "act of God") our zoning ordinance currently state
these buildings cannot be rebuilt. Is that okay?
(updated May 10, 2006) |
The answer to the question
used to be "no." M.C.L. 125.286(2) (section 16(2) of the Township
Zoning Act) says
"The township board shall
provide in a zoning ordinance for the completion, restoration
, reconstruction, extension, or substitution of nonconforming
uses upon reasonable terms set forth in the zoning ordinance"
[emphasis added]. However the Michigan
Zoning Enabling Act (P.A. 110 of 2006, as amended, M.C.L. 125.3101 et
seq., effective July 1, 2006) changed the above wording
to: "The legislative
body may provide in
a zoning ordinance for the completion, restoration , reconstruction,
extension, or substitution of nonconforming uses upon reasonable terms
set forth in the zoning ordinance" [emphasis
added]. Thus it is now possible for zoning not to allow reconstruction.
----Kurt H. Schindler
"Hardship to the
owner" seems to carry considerable weight in other cases, where the township
isn't totally prohibiting extension or expansion, but being very strict otherwise.
I would call this a fairly pro-owner standard that could leave townships open
for trouble, "reconstruction" falls under these same tests. Many ordinances
have a 50% per 1-year rule (buildings destroyed greater than 50% must be
rebuilt in compliance with ordinance only. Destroyed less than 50%
can be rebuilt as old, so long as reconstruction begins within 1 year) that
a court would likely interpret as reasonable.
----Gary Taylor
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(old web site)
