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Court of Appeals Reverses ZBA Denial of Homeowner’s Right to Rent Lakefront Property

Written by Admin on June 26, 2012 Category: Land Use and Zoning, Michigan Land Use and Zoning

The Michigan Court of Appeals reversed the decision of a local Zoning Board of Appeals that denied a homeowner the right to rent her lakefront property during the summer.

In Soechtig v. Township of Greenbush, the plaintiff and her family had rented the home in Greenbush – about 35 miles south of Alpena – during the summer months every year since 1957. The Defendant Township of Greenbush informed the plaintiff in 2010 that, due to a 1984 rezoning that reclassified the area to single-family residential, weekly rentals were now barred. When the plaintiff explained that her family had rented the cottage every summer for more than 50 years, the Township requested rental receipts for every year beginning in 1984 and continuing through 2009 in order for the property to qualify as a prior nonconforming use exempt from the rezoning requirements. The Township eventually denied the plaintiff’s request.

The Township Zoning Board of Appeals upheld the Township’s decision, even though the plaintiff offered letters from families that rented the property on several occasions during the 1970s and 1980s. The Alcona Circuit Court affirmed the ZBA decision, finding that the plaintiff did not establish a prior nonconforming use.

The Court of Appeals reversed, finding that the ZBA had relied on an ordinance that addresses abandonment of a prior nonconforming use instead of the establishment of such a use. “In order to establish a prior nonconforming use, plaintiff did not have to prove the continuity required by the ‘ordinance.’ The ZBA’s requirement that plaintiff do so was contrary to Michigan law.” In other words, the plaintiff would establish a prior nonconforming use by showing the cottage was rented prior to 1984, when the property was rezoned, not every year afterward. The appellate court remanded the matter back to the ZBA to “determine whether plaintiff established the existence of a prior nonconforming use, i.e., whether the cottage was rented during the summer before the 1984 ordinance became effective.”

To make such a determination, the ZBA was directed to look at evidence demonstrating whether the cottage was used in a reasonably similar method of summer rentals before the enactment of the 1984 ordinance. Such evidence would determine if plaintiff in fact had a prior nonconforming use that would be exempt from the 1984 ordinance’s ban on weekly summer rentals. The appellate court offered additional guidance to the ZBA, noting that “undisputed testimony from a property owner seeking to establish a prior nonconforming use is sufficient to support the existence of a prior nonconforming use.”

The attorneys at Dalton & Tomich have extensive experience in state and federal courts contesting the improper decisions of local Zoning Boards of Appeal, as well as other local government agencies. If you believe you have been improperly deprived of a lawful use of your property, please contact us.

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