In zoning parlance, a non-conforming use is a property use that would violate the current zoning regulations, but which existed before the current zoning regulations were in place. One might also say that the existing use of the property is “grandfathered.” In order to be recognized as a non-conforming use, the property owner must show that the non-conforming use complied with the prior regulations. The law grants property owners these variances under a theory of vested rights and fundamental fairness.
In a recently decided case, Township of Blair v. Lamar OCI North Corp., (available at: http://milawyersweekly.com/fulltext-opinions/2011/11/01/township-of-blair-v-lamar-oci-north-corp-michigan-court-of-appeals-unpublished/) the Michigan Court of Appeals discussed whether improvements may be made to a non-conforming use without destroying the protection from having to comply with the current regulations. In that case, a billboard violated the zoning laws in three ways. First, the billboard’s surface area was too large. Second, the billboard was too close to other billboards. Finally, the billboard was too tall. The owner of the billboard made changes to the height and surface area of the billboard, bringing them in conformity with the zoning laws. However, the billboard still violated the zoning regulation concerning distance between other billboards. In other words, two of the three violations had been eliminated by the modifications.
After the modifications were made, the Township brought suit against the owners of the billboards to compel their removal. Even though the owner of the billboard fixed two of three non-conformities, the Court of Appeals ruled that the billboard still violated the current zoning regulations and ruled for the Township. Although this might seem unfair—after all, the billboard was in better conformity after the changes—it is important to note that the purpose of allowing non-conforming uses are for fairness. Once any changes have been made, it is expected that those changes will make bring the property into full compliance with applicable regulations.
Because of the quirks and intricacies of zoning laws, it is important for those who have been granted variances for non-conforming uses to seek legal advice prior to making improvements or changes to their property. Without help, those with non-conforming use variances might end up unintentionally losing those rights.
