Sound Advice From Experienced Counsel
Where a cottage owner claimed the family cottage had been used or made available for rent every year since her family first owned it in 1957, who must show what in order to allow rentals to continue, despite a 1984 rezoning of the property that prohibits weekly rentals? That was the issue before the court in a recent Michigan Court of Appeals case, Soechtig v Township of Greenbush, Case No. 301757. In that case, the township demanded that the property owner provide rental receipts prior to 1984 and each consecutive year thereafter. The property owner provided three letters from families that rented the cottage on several occasions during the 1970s and 1980s and four affidavits that stated the cottage had been “either rented or offered continuously for rent since 1957.” She explained:
I cannot provide any rental receipts prior to 1984 since my grandmother was responsible for the cottage prior to her death in 1985. She rented the cottage to friends and neighbors and when my mother took over from 1985 to 2004 she also rented to friends and neighbors and I have no idea if she kept receipts and now that she’s dead, I can’t ask her.
The Zoning Board of Appeals (ZBA) deemed this showing insufficient and the trial court agreed. The owner appealed to the Court of Appeals.
The legal term of art at issue is generally referred to as a “prior nonconforming use.” This means “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.” Belvidere Twp v Heinze, 241 Mich App 324, 328; 615 NW2d 250 (2000). A nonconforming use may be seasonal. However, it generally may not be enlarged, i.e. “The continuation of a nonconforming use must be substantially of the same size and the same essential nature as the use existing at the time of passage of a valid zoning ordinance.” Edw C Levy Co v Marine City Zoning Bd of Appeals, 293 Mich App 333, 342; 810 NW2d 621 (2011).
A nonconforming use may also be abandoned. In order for there to be an abandonment, there must not only be an actual discontinuance of the use, but also an intent to abandon. Livonia Hotel, LLC v City of Livonia, 259 Mich App 116, 127-128; 673 NW2d 763 (2003). The property owner has the burden of establishing a nonconforming use. Heath Twp v Sall, 442 Mich 434, 439; 502 NW2d 627 (1993). However, the burden of proving abandonment is on the local government seeking to enforce the ordinance. Dusdal v City of Warren, 387 Mich 354, 360; 196 NW2d 778 (1972).
In the Soechtig case, the Court of Appeals reversed and remanded the case to the ZBA. The court noted that 1984, the date the ordinance was enacted, is the critical point in determining whether plaintiff had a vested nonconforming use. “[W]hile plaintiff’s use of the cottage after the 1984 enactment date would be relevant to determine whether plaintiff abandoned a prior nonconforming use or expanded the scope of such use, it is irrelevant to the initial determination of whether plaintiff established a vested right in the nonconforming use of the cottage for summer rentals.” The Township’s requirement that plaintiff prove continuity of use after 1984 in order to establish a prior nonconforming use in the first place was improper. The court explained what the proper analysis should be on remand:
If the evidence submitted by plaintiff establishes a prior nonconforming use, then the township may attempt to show that plaintiff abandoned the prior nonconforming use. To do so, the township must demonstrate that (1) plaintiff intended to abandon the nonconforming use, i.e., summer rental of the cottage, and (2) an act or omission by plaintiff that clearly manifests her voluntary decision to abandon.”
While not breaking new ground, the Soechtig case provides an interesting primer on the law of nonconforming uses.