Nonconformities in zoning is the source of much confusion

Zoning cannot be retroactive, and has to grandfather existing land uses. Those are called nonconformities which take on many characteristics and are different than zoning violations.

Maybe one of the most confusing parts of zoning and the source of misunderstanding are zoning nonconformities. Many have heard the complaint; person “A” is able to do something on their land, but person “B” could not get a permit for the same thing. The story then goes on to talk about that being unfair, or a community playing favorites with some.

A very basic and fundamental part of zoning in Michigan is that a zoning ordinance cannot be made retroactive. Zoning cannot be used to go back and stop someone from doing something they have already been doing. Those legal pre-existing land use activities are “grandfathered,” and get to continue. This concept is one of the basic private property protection tenants in Michigan zoning law.

The proper term for this “grandfathering” is called “nonconforming uses.” If the activity, parcel, or use was legally being done on the date of the adoption of a zoning ordinance, or amendment to a zoning ordinance, then it must be allowed to continue. (It is redundant to say “legal nonconforming use,” if it was not legal it cannot be nonconforming.)

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Screen capture of the Carolina Beach, NC., parcel map showing nonconforming (too small) parcels in the R-3 zoning district.

The Michigan Zoning Enabling Act (MCL 125.3101 et seq)) says:

“If the use of a dwelling, building, or structure or of the land is lawful at the time of enactment of a zoning ordinance or an amendment to a zoning ordinance, then that use may be continued although the use does not conform to the zoning ordinance or amendment. . . . The legislative body may . . . for the completion, resumption, restoration, reconstruction, extension, or substitution of nonconforming uses or structures upon terms and conditions provided in the zoning ordinance.”

—MCL 125.3208(1) and (2).

There are only two ways a nonconformity comes to an end, or stops. The first is if the local government purchases the nonconformity from the property owner. That can be done on a willing seller-buyer basis or might be done with adverse condemnation (MCL 213.21 et seq.). The second is if the property owner chooses on their own volition to stop the nonconformity.

The passage of time is not enough to establish a property owner has stopped the nonconformity. There are zoning ordinances which will have a statement such as “after one year of disuse, the nonconformity is considered to be abandoned.” That does not work, no matter how much time has passed. To consider a nonconformity to be stopped one has to take into account many different factors. It is a determination based on the preponderance of the factors considered.

The zoning ordinance can prohibit, or limit the amount of growth of a nonconformity. But such limitation cannot create a situation where the inability to expand the nonconformity would result in violation of another law. For example if the building expansion is needed so it meets barrier-free requirements, that expansion would have to be allowed to happen, even if zoning does not allow expansion.

 A nonconformity can take on a number of different forms:

  • It might be a nonconforming parcel. That is the parcel may be too small, or not wide enough, or deep enough, or lacks required access to a public road. But if the parcel was legal when it was created, even though the zoning requirements have since changed, it gets to continue to be used as though it is a conforming parcel.
  • It might be a nonconforming building. That is the building may be too small, or large, or tall, or short. It may be the building sits within one or more of the required setbacks. But if the building was legal when it was built, even though the zoning requirements have since changed, it gets to continue to be used as though it is a conforming building.
  • It might be a nonconforming land use. That is the activity taking place is a type of land use that is not otherwise allowed in the respective zoning district. But if the land use was legal when it was first started, even though zoning requirements have changed, it gets to continue to be used as through the land use is conforming.
  • It might be other dimensional problems. That is the site is such that there are not enough parking spaces, does not have a required buffering or vegetation belt, as well as other measurable/countable site requirements of the zoning ordinance. But if the dimensional problem was legal when it was first started, even though zoning requirements have changed, it gets to continue to be used as through it is conforming. 

If in any of the above, the parcel, building, land use, or site requirements, were not legal when it was first started, even though zoning requirements have changed, it is not nonconformity; it is a zoning violation and should be handled with enforcement measures.

Finally, any nonconformity – like any zoning permit, variance, or decision – travels with the land. That means the owner of a nonconformity can sell it, and the new owner continues to have all the rights and ability to continue use of the nonconformity. The owner can also rent, lease, or otherwise allow another to continue to pursue the nonconformity.

So one person may properly be able to continue an activity on their land, while another in the same zoning district is not able to start up the same activity. It is not a result of being unfair or playing favorites. It is a result of protecting someone’s property rights and their ability to continue doing what they were doing before new or change zoning regulations were adopted.

Those in Michigan State University Extension that focus on land use provide various training programs on planning and zoning, which are available to be presented in your county. Contact your local land use educator for more information.

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