Schindler's
Land Use Page

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1. Best answer I'm going to be able to give you:
     There is not a court case that directly addresses your question (or if there is I did not find it). There are a couple of court cases that dance around the issue:
     In Willingham v. Dearborn (359 Mich 7; 101 NW 294 (1960); see also Boron Oil Co. v Southfield, 10 Mich App 135; 170 NW2d 517 (1969)) an owner applied for a building permit to which the existing zoning ordinance entitled him, and was refused on the ground that his plans showed an inadequate setback. After he brought a mandamus action, the city amended the ordinance to required the setback it had demanded. It tried to amend its pleadings to plead the amendment to the ordinance, but the pretrial conference had been held and a five to three majority of the Michigan Supreme court voted to affirm the trail court's refusal to permit amendment of the pleadings and its grant of the writ of mandamus. The result was to give the owner a nonconforming use without starting construction.
     So here, the court did not allow following the new ordinance before it was adopted.
     In a second case, Dingeman Advertising, Inc. v Algoma Twp, (46 Mich App 71; 207 NW2d 488 (1973); rev'd, 393 Mich 89; 223 NW2d 689 (1974)) the plaintiff, desiring to erect a billboard, had caused a utility to install a 40-foot pole and transformer, had staked out a sign location, and had constructed, in its shop, an outline of the billboard. At this point a zoning ordinance intervened. The case was about if Dingeman Advertising had a vested interest or not. The Court of Appeals held that this did not constitute substantial construction. Three supreme court justices agreed. Three others took the view that additional work, done after the effective date of the ordinance, could be counted. They held that substantial construction had taken place. One thought that mere erection of the pole constituted substantial construction, but that work done after the ordinance took effect did not count. As a result, the holding was that a vested interest had been obtained, but a majority of the justices rejected the notion that work done after the effective date of the ordinance could be counted.
     Here the court recognized work done under the old ordinance, but not under the new ordinance as a vested interest had been established before the date of the new ordinance.
     Third case: 'We review a trial court's decision to admit evidence of a zoning ordinance amendment for an abuse of discretion. Landon Holdings, Inc v Grattan Twp, 257 Mich. App. 154, 161; [*4] 677 NW2d 93 (2003). The trial court should apply the version of the ordinance effective at the time it renders its decision, with two exceptions: where doing so would destroy a property interest that vested before the amendment or where "'the amendment was enacted for the purpose of manufacturing a defense to plaintiff's suit.'"' Id., quoting Rodney Lockwood & Co v City of Southfield, 93 Mich. App. 206, 211; 286 N.W.2d 87 (1979) (citing Keating Int'l Corp v Orion Co, 395 Mich. 539, 548-549; 236 N.W.2d 409 (1975)).
     These cases support --although not with an absolute degree of certainty-- the idea one can not process a permit application under the new zoning, when the application/process started before the ordinance's effective date. Even vested interest crossing the effective date of an ordinance was not allowed by the court.
2. On the more practical side, give this some thought:
     If a person applies before the new zoning take effect, and is approved under the terms of the old (existing) zoning ordinance --the result is the creation of new structures which will almost immediately become nonconforming uses and subject to the limitations on expansion, remodeling, reconstruction of nonconformities according the terms of the new zoning ordinance. A discussion should occur with the applicant so they are aware of what that means to them, so they can make an informed decision based on what they feel are there best interests.
     An additional thought: 401(6-7) of the Michigan Zoning Enabling Act (M.C.L. 125.3401(6-7)) specifically states that following adoption of a zoning ordinance and subsequent amendments the legislative body must publish 1 notice in a newspaper of general circulation specifying that the ordinance/amendment was adopted and the effective date of the ordinance. As you know, if this is not done, the ordinance or amendment must be re-adopted and subsequently published. Otherwise, the procedural requirements of the Act have not been complied with. Therefore, to say that the approved ordinance may take effect immediately, or on an anticipated specific date, is presumptuous. The full zoning process has not been completed. What if, for instance, you make someone comply with the amended ordinance, the notice does not get published therefore mandating that the ordinance/amendment must be re-adopted, and for some reason after rethinking their prior decision the legislative body decides not to readopt the amended ordinance but to remain with the old one?
     See also this question and answer.
3. Some other quips from various zoning cases (that caught my interest on my way to looking for the answer to this):
     'To claim a vested interest in a zoning classification, the property owner must "hold[] a valid building permit and [have] completed substantial construction."' (Michael Dorman v Township of Clinton; No. 256362; Michigan Court of Appeals; 2006 Mich. App. LEXIS 304)
     '"A prior nonconforming use is a vested right in the use of particular property that does not conform to zoning restrictions, but is protected because it lawfully existed before the zoning regulation's effective date." Heath Twp v Sall, 442 Mich. 434, 439; 502 N.W.2d 627 (1993). "The zoning restriction's enactment date is the critical point in determining when a nonconforming use vests." Id. at 441. Generally speaking, nonconforming uses may not be expanded, and one of the goals of local zoning is the gradual elimination of nonconforming uses.' Century Cellunet of Southern Michigan Cellular Ltd Partnership v Summit Twp, 250 Mich. App. 543, 546; 655 N.W.2d 245 (2002).
     "Once a city or township issues a valid permit to an applicant, that applicant has every reason and [*447] right to rely thereon in his business dealings. Permits are not issued by local authorities when the contemplated use for which the permit is issued conflicts with a local zoning ordinance. Should these ordinances change, the average holder of such [***18] a permit, even if he had notice of the change of ordinance, would not necessarily presume that the new ordinance applied to him. After all, he has within his possession an official document of the local community authorizing him to proceed with his contemplated project.
     While it is true that the issuance of a permit itself will not give vested rights to a nonconforming use to the holder thereof, the possession thereof, and substantial reliance thereon, will give such rights." [Dingeman Advertising, Inc v Algoma Twp, 393 Mich 89; [***10] 223 NW2d 689 (1974). n6 at 98-99.]
     "[w]here building permits have been applied for, but have not been issued, vested rights are not acquired, even though significant sums may have been expended by the applicant." Bevan v Brandon Twp, 438 Mich 385; 475 NW2d 37 (1991)
4. Responses from others in the MSU Extension Land Use team:
     The zoning ordinance that is in effect on the day of acceptance of a complete application is the one that governs the entire process. This just happened in Clinton County with the adoption of an entire new Ordinance. It actually took a couple of months post effective date of the new Ordinance to clear the schedule of these lingering cases. It is hoped that the planning department is forward thinking in discussions with the applicant. However, the Ordinance in effect at the time of accepted application is the governing document.
     Additionally, the new Ordinance while adopted is not in effect until final publishing date. Therefore all applications submitted during this time would also need to be considered under the existing (old) Ordinance.
     For further information and a great resource on why and how the decision was made to follow this rule of thumb in Clinton County you can reach the Director of Planning, Peter Preston at 989-224-5207. I would agree with the Attorney.
---- Michelle Rearden, Tri-County Land Use Educator
     I’d agree using the existing zoning ordinance is the one to use. A seems most appropriate. Not sure of any case law to back it up though.
---Brad Neumann, St. Joseph county Land Policy Educator
     I did a quick look at lexis, but found little. At first glance, I agreed with Schindler, but then even if the plan were approved under the old rules, would not the problem then move into a preexisting nonconforming use mode on the effective date of the new ordinance, for which a special use permit would have to be granted? I guess the issue is jumping through more hoops under the new law.
     (I’m just shooting from the hip here and can find no authority for this view either way)
---- Dave Smith, Community Ag Rec and Res, MSUE Extension Specialist
     I always tell my clients that it's the law in effect the day the application is submitted.
---- Mary Ann Heidemann, Arenac County Extension Director and Land Use Specialist.
     Common sense would suggest use the zoning ordinance in effect on the date the application was received, but I don't have any case law to back that up. A follow up question: will the applicant have a problem with it either way?
---- Dan Wells, Land Use Educator, Muskegon County.
     My first inclination is to agree with the consulting planner, thus [the the new zoning ordinance or the new zoning ordinance (with an effective date at some tine in the future, with a special use permit approval that takes place after the effective date, because it is a question of vested rights. Vested rights do not vest until a permit is issued or until the landowner has placed substantial reliance on the actions of the local government. The landowner should have been aware that zoning was about to change and cannot rush to city hall to avail himself of the zoning that the city no longer wants.
----Gary D. Taylor Esq., Iowa State University
State and Local Government/Land Use Specialist.
     In the absence of specific [zoning] ordinance language addressing the situation (which is increasingly common), I agree with you that the answer is “use the zoning ordinance in effect on the date the application was received.” However, if the use is one which has been the subject of controversy during the process of preparing the zoning ordinance and standards were prepared that are markedly different than before, then there may be an expectation that the use must conform with the new language. If so, the community may be willing to endure a court case to apply the new standards. They may also be able to finesse conformance during the discretionary part of the review process, but that still means acknowledging it was filed under the prior ordinance requirements.
     There are a few cases on “changing the rules midstream.” As I recall, most concern rezonings and nonconforming uses. The results are a mixed bag with the community winning sometimes (I would have guessed never because of the fairness issue). There are no cases that I recall involving the question at hand.
     I don’t have time (would be at least an hour) to try to find the cases­but since they are not direct anyway, they would likely be of little value.
---- Mark A. Wyckoff, FAICP, Director, Planning & Zoning Center at MSU and Senior Associate Director, Land Policy Program