Daily Development for Tuesday, January 30, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

ZONING AND PLANNING; PREEXISTING NONCONFORMING USE: To constitute a legally cognizable nonconforming use, work of a substantial nature must materially and objectively change the land.

Belvidere Twp. v. Heinze, 615 N.W.2d 250 (Mich. App. 2000).

Landowner purchased property intending to operate a hog farm with between 6,000 to 7,000 hogs, and took substantial steps toward implementing that activity, including some work on the land itself. Before landowner began the farming operations, however, the Township passed a zoning ordinance requiring a special use permit for any farm with more than two hundred animals. It subsequently denied the special use permit for this landowner.

The trial court ruled that the landowner had a vested preexisting nonconforming use.

On appeal: Held; Reversed. Landowner did not meet Michigan's rather rigorous test for a land use right to vest.

Interestingly, the court does not indicate whether the landowner had received any required public approvals prior to commencing the work that the landowner did do. We must assume that if any such permits were required, landowner did get them, as the court's opinion does not turn on the lack of any permits.

Although the landowner treated all of his activities preparatory to commencing the hog operation as "of a piece, the court divided the activities into three categories, the easier to dismiss them:

First the court addressed the landowner's arguments that he had established a vested nonconforming use by, inter alia: (1) purchasing the land, (2) acquiring financing, (3) hiring a designer for the farm and manure pits, (4) obtaining quotes for the costs of buildings and materials and entering into contracts with suppliers, (5) purchasing insurance, (6) grading the site, (7) staking the location of the barns and manure pits and sewage system, (8) applying for well and sediment control permits, (9) building an access road and installing a culvert.

The court of appeals held that these activities failed to give rise to a vested nonconforming use because they were preparatory operations, which have been held insufficient to establish vested rights in Michigan because they are not substantial uses of the land.

The landowne, however,r also actually constructed the manure pits and a sewer system. The court conceded that such work "feasibly could constitute work of a substantial character that tangibly changed the land." But it concluded that these activities were "minuscule in comparison with the entire construction of a swine farm with thousands of pigs." The court further concluded that the improvements are equally useful for a lawful, conforming use, such as the operation of a hog farm that does not qualify as a concentrated livestock operation."

Finally, the landowner also pointed out that he had constructed an access road to the site. But the court stated that "the nature of the road was never described. Here, we have no information regarding the makeup or route of the road, but even if paved a road would not make a nonconforming use apparent, because a road would be equally useful for any lawful use."

Comment 1: We note the case because of the emphasis on the apparency of a nonconforming use, as opposed to the degree to which the landowner has relied upon the public permission in carrying out the use. The court cites other Michigan cases setting this rather strict standard, but it might have been influenced as well by the fact that the landowner was given notice of the pending ordinance before it became effective and continued to work on his land nonetheless. We are not told what work was completed when, and the case doesn't turn on that point, but the landowner's defiance of the pending order may have influenced the outcome.

Comment 2: In many states, issuance of a building permit is enough. In others, substantial reliance is enough. In still others, the issuance of a building permit plus substantial reliance in building pursuant to the permit is enough. Although occasionally there is talk of "substantiality" of the reliance in terms of changes in the land, other aspects of specific reliance usually are taken into account. Michigan's case law appears to be rather severe in demanding that the project actually be substantially in existence before the right has vested.

The court's dismissal of many usespecific activities, such as hiring designers and entering into contracts may be appropriate if these were the *only* activities the landowner undertook, but when they are combined with other activities on the land itself, it would seem that the landowner made a stronger case than the court allowed.

Comment 3: Undoubtedly the court knows more about hog farming than the editor, but it would seem that manure pits and a sewage system to dispose of the excretions of 7000 hogs would be quite a bit more elaborate than what would be necessary to deal with the otherwise lawful allowance of 200 hogs.

It would appear that the court might as well just declare a public policy against zoning permits for hog farms and be done with it!! Maybe this would prevent the law from being fouled with bad precedent that will interfere with other vested rights claims.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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