ARTHUR SULLENS V TOWNSHIP OF SUMPTER
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STATE OF MICHIGAN
COURT OF APPEALS
ARTHUR SULLENS and MICHELLE SULLENS,
UNPUBLISHED
September 26, 2000
Plaintiffs-Appellants,
v
No. 214224
Wayne Circuit Court
LC No. 97-733243-CZ
TOWNSHIP OF SUMPTER,
Defendant/Third-Party PlaintiffAppellee,
and
COUNTY OF WAYNE,
Third-Party Defendant.
Before: Holbrook, Jr., P.J., and Kelly and Collins, JJ.
PER CURIAM.
Plaintiffs appeal as of right from an order entered by the trial court dismissing with prejudice
plaintiffs’ cause of action. We reverse and remand.
Plaintiffs own several parcels of land in Sumpter Township, including an eight-acre lot that they
put up for sale in 1997.1 This lot is the subject of this cause of action. The lot includes two structures
used as housing. Plaintiffs live in the smaller of the two dwellings and, until shortly before this lawsuit
was initiated, rented the other. The dwellings are serviced by one septic tank system and one water
connection to the township water main. Plaintiffs contend that the use of the two structures as dwellings
1
At the time the lot was first put on the market, it was approximately ten acres. Subsequently, plaintiffs
split off a one-acre parcel, and as of the filing of their brief on appeal, intended to split off another one
acre parcel.
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and the set up of the water and septic systems has existed since at least 1977, when plaintiff Arthur
Sullens purchased the property.
Plaintiffs alleged in their complaint that their attempts to sell the disputed property were
undermined by defendant Sumpter Township (hereinafter Sumpter). Specifically, plaintiffs alleged that
Sumpter had been telling prospective buyers that the property could not be sold until it was split so that
the two dwelling houses would be located on separate lots. Further, plaintiffs alleged that Sumpter was
telling the prospective buyers that a second septic system would have to be installed. In its first motion
for summary disposition, Sumpter asserted that plaintiffs were also challenging Sumpter’s requirement
that a separate water service lead be installed so that the two dwellings would each be serviced by a
different lead. Plaintiffs sought declaratory and injunctive relief as well as damages, claiming that
Sumpter’s behavior was improper given that the set up of the two dwellings constituted a vested
nonconforming use of the property.
Sumpter appears to concede that the use of the two structures as dwellings and the existence of
the single septic system and single water connection predated the enactment of the relevant township
ordinances. However, Sumpter does dispute whether the use of the smaller structure as a dwelling was
lawful. Sumpter asserts that this structure has always been assessed as a garage, and that no permit to
change it to a dwelling was ever issued.
In its first motion for summary disposition, Sumpter argued that even assuming that the use of
the two dwelling houses both was lawful and predated the enactment of the applicable zoning
ordinances, plaintiffs’ suit must fail because plaintiffs could not establish that the regulations were
unreasonable in that they deprived plaintiffs of any substantial rights. In response, plaintiffs filed a
counter-motion for summary disposition, arguing that not only did Sumpter lack jurisdiction over the
septic tank issue because regulation of this activity was under Wayne County’s jurisdiction, but that
application of the ordinance would impose a substantial burden on a valid nonconforming use of the
property. The record contains an order denying defendant’s motion for summary disposition.
However, the order does not set forth the reasons for the denial, and the record does not include a
transcript of the motion hearing. Accordingly, we have no indication whether the trial court considered
and dismissed, or put off any decision on plaintiffs’ counter-motion for summary disposition.
Thereafter, Sumpter was allowed to implead Wayne County as a third-party defendant. In its
third-party complaint, Sumpter alleged that it “has merely insisted that Plaintiffs comply with its
ordinance which requires that Plaintiffs’ property be split for purposes of taxation, and that there be
separate water lines, thereby bringing it into compliance with Sumpter’s zoning ordinance . . . .”
Sumpter characterized the cost of these requirements as “insubstantial.” Further, Sumpter alleged that
the real financial burden facing plaintiffs was due to Wayne County’s insistence that a second septic
system be installed. Sumpter’s third-party complaint was summarily dismissed by the trial court “for the
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reason the County of Wayne is immune pursuant to MCL 691.1401 et seq.[; MSA 3.996(101) et
seq.] and for other reasons stated on the record.”2
Next, Sumpter filed a second motion for summary disposition, arguing that because it is a
government agency, law of the case doctrine compels the dismissal of plaintiffs’ lawsuit on the same
grounds cited for the dismissal of its third-party complaint, i.e., governmental immunity. In their
response, plaintiffs argued that Sumpter’s actions were ultra vires, and thus not covered under
governmental immunity. In support of this assertion, plaintiffs again argued that application of the zoning
ordinances would impose a substantial burden on a valid nonconforming use of the property, and that
Sumpter had no jurisdiction regarding the septic system.
On its own motion, the court dismissed plaintiffs’ cause of action at the hearing held on
Sumpter’s motion for summary disposition, reasoning as follows:
I’m ordering them to issue a certificate of occupancy and that solves the matter for me.
Issue a certificate of occupancy. The township can take additionally whatever action
they feel is proper in order to conform to their ordinances including putting in the line
themselves and assessing the property.
***
Okay, let me get it straight so I don’t see you again on this one. The township
is hereby ordered to issue a certificate of occupancy and prevented from . . . prohibiting
the sale of the property based on non-conforming use. The township is further
permitted by my order to install the separate sewer line to make the use conforming and
to assess the property . . . , and fold that cost into the property taxes . . . .
The court also indicated that Sumpter was permitted to install the second water service lead. When
asked by plaintiffs’ attorney whether the court was concluding that the nonconforming use doctrine was
inapplicable, the court responded, “Of course. They’re going to make it conforming.” Finally, when
pressed by Sumpter’s counsel on whether it was grating Sumpter’s motion for summary disposition, the
court responded, “No, summary disposition is denied because I don’t think you’re immune.” The court
did not elaborate further.
In its order for dismissal, the trial court ordered the township to issue a certificate of occupancy
allowing plaintiffs to sell the property in its present condition. Further, the court ruled that the township
was allowed to “take steps to bring the subject property into conformity with its ordinances, including
the installation of a separate sewer line and a separate water service lead, and to file a lien and/or assess
the property to recover its cost therefor.”
Plaintiffs first argue that the trial court erred in dismissing their suit. We agree, but not for the
reasons set forth by plaintiffs on appeal. Both plaintiffs’ lawsuit and their appeal are based on the
2
The transcript of this hearing is not included in the record before us.
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nonconforming use doctrine. Plaintiffs argue that any attempt to force them to split the disputed
property into two parcels and to require them to alter the water and septic systems violates their
constitutionally protected right to continue the nonconforming use of the property. What plaintiffs’
argument fails to consider is whether under the circumstances of this case, Sumpter’s regulations of
plaintiffs’ property stem from different and distinct exercises of police power, and if so, whether this
impacts the applicability of the nonconforming use doctrine.
“A prior nonconforming use is a vested right in the use of a particular property that does not
conform to zoning restrictions, but is protected because it lawfully existed before the zoning regulation’s
effective date.” Heath Twp v Sall, 442 Mich 434, 439; 502 NW2d 627 (1993). Accord Dusdal v
City of Warren, 387 Mich 354; 359-360; 196 NW2d 778 (1972). Although considered to be
detrimental to the public interest as expressed in the zoning scheme, nonconforming uses are allowed to
continue in order to protect the constitutional rights of the property owner in the use of the property.
This does not mean, however, that local governments have no authority to regulate the nonconforming
property. For example, the property owner cannot change or expand that use. City of Troy v
Papadelis (On Remand), 226 Mich App 90, 95; 572 NW2d 246 (1997). This is in keeping with the
public policy goal of gradually eliminating the nonconforming use.
Further, nonconforming uses are subject to reasonable regulations enacted pursuant to the
exercise of a local government’s police power to protect the public health, safety, and general welfare.
Goldblatt v Town of Hempstead, 369 US 590, 592; 82 S Ct 987; 8 L Ed 2d 130 (1962); Square
Lake Hills Condominium Ass’n v Bloomfield Twp, 437 Mich 310, 322, n 18; 471 NW2d 321
(1991); Orion Twp v Weber, 83 Mich App 712, 720; 269 NW2d 275 (1978); Renne v Waterford
Twp, 73 Mich App 685, 690; 252 NW2d 842 (1977); Casco Twp v Brame Trucking Co, Inc, 34
Mich App 466, 471; 191 NW2d 506 (1971). Nonconforming property owners cannot escape
compliance with local health and safety regulations simply because their nonconforming use of the
property is protected. 4 Anderson on Zoning, § 6.73, pp 529-530. “A non-conforming use is
amenable to municipal ordinances which regulate similar uses, conforming or non-conforming.” Id.
Accord 4 Rathkopf’s The Law of Zoning and Planning, § 51A.02(2) (1997). The nonconforming use
doctrine is meant to protect property owners from the unfair and perhaps unconstitutional deprivation of
their property rights. It is not meant, and cannot be used as a shield to insulate nonconforming property
owners from the health and safety regulations applicable to all.
Often, the failure to recognize the difference between a local government’s authority to zone and
to regulate is based on the fact that these concepts stem from the same general grant of police power.
See Natural Aggregates Corp v Brighton Twp, 213 Mich App 287, 298-299; 539 NW2d 761
(1995) (observing that “[t]he distinction between zoning and regulatory ordinances cannot be
predicated on whether the purpose of the ordinance is to promote the public good, since both may have
as their purpose the public good). Nonetheless, as recognized by the Court of Special Appeals of
Maryland in Mayor & City Council of Baltimore v Dembo, Inc, 123 Md App 527; 719 A2d 1007
(1998), a critical distinction exists between these exercises of municipal authority. In Dembo, the
appellate court concluded that a nonconforming adult entertainment business was subject to reasonable
licensing provisions regulating the use of the property. Id. at 534. The Dembo court reasoned that the
licensing provisions at issue “are not in the nature of a zoning law, which is primarily concerned with
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uniformity of land use and stability of location. . . . Rather, the provisions are more broadly aimed to
protect the health and welfare of the citizens by licensing operators of adult entertainment
establishments.” Id. at 536-537.
Courts consistently recognize the ability of a local government to regulate the manner in which a
nonconforming use operates under the government’s police power. For example, in Wantanabe v City
of Phoenix, 140 Ariz 575; 683 P2d 1177 (1984), nonconforming property owners challenged the
imposition of a city ordinance requiring them to pave their gravel parking lots. Five of the appellants
operated roadside stands that sold items raised on their farms. Adjacent to each stand was a graveled
parking area. The other appellant operated a yard where it manufactured precast concrete products.
The yard was graveled. It was conceded that these uses were nonconforming. Id. at 576. The
Watanabe court rejected appellants’ argument “that the city may not enforce any zoning ordinance
which affects their existing nonconforming property.” Id. at 577. The court concluded that the
ordinance, which was intended to control for dust, was a reasonable exercise of the city’s police power
authority to regulate to protect the public health, safety, and welfare. Id. at 578.
Another illustrative case is Miller & Son Paving, Inc v Wrightstown Twp, 42 Pa Commw
458; 401 A2d 392 (1979). In that case, the defendant operated a nonconforming quarry. The
defendant had been cited for several zoning violations, including the failure to fence the property. Id. at
460-461. The defendant argued that because “it has a nonconforming use it has a right to conduct its
operations exactly as it did prior to the enactment of the Zoning Ordinance, including the right to
continue to quarry without providing a fence.” Id. at 461. The Miller court held that the trial court had
correctly concluded “that no nonconforming rights to quarry its land were interfered with by requiring
[the defendant] to fence its operations for the safety of the public.” Id.
Similarly, in Keener v Serr, 53 Ohio App 2d 143, 145; 372 NE2d 360 (1976), the Court of
Appeals of Ohio, Sixth District, held that a municipality can require the owners of nonconforming
junkyards to maintain a list of vehicles in the yards and to present said list to an authorized subdivision of
the municipality upon request. The court explained that such requirements were legitimate exercises of
the municipalities power to regulate “for the protection of the public health, safety, morals and general
welfare.” Id.
Of course, if the regulations effectively and immediately terminate the nonconforming use, then
such regulations may be invalid as applied. See Orion, supra at 720-724. This is in keeping with the
notion that such nonconforming use is a vested right that should be free from the threat of immediate
termination.
Although Michigan appellate courts often frame the issue through a reference to the enabling
legislation on which the ordinance at issue is authorized, see, e.g., Casco, supra at 471, determining
whether a given provision should be characterized as zoning or regulatory does not depend on a
mechanical application of some sort of statutory spread sheet, i.e., it is not simply a matter of scrutinizing
case law and statutory language to determine if the ordinance at issue stems from a statutory framework
identified as zoning or regulatory in nature. In fact, much of the current statutory landscape does not
neatly subdivide local police power authority into such discreet categories, and often a general area of
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concern is addressed in more than one enabling statute. A nonconforming property owner cannot be
immune from reasonable regulations adopted in the interest of promoting the public health, welfare, and
safety simply because the activity at issue is mentioned in a statute or act that addresses a local
government’s zoning authority. See Keener, supra.
Instead, the operative question is whether the ordinance restricts the application or employment
of the property in the use designated as nonconforming, or whether, in furtherance of protecting the
health, welfare, and safety of the community, the ordinance regulates the manner in which the use
functions. If the answer is the later, then the vested rights theory of nonconforming uses is inapplicable.
See, e.g., Renne, supra at 689-690 (observing that “no right of compensation inures to property
owners who are constrained by ordinance for reasons of public health and welfare to abandon a
functional septic tank in favor of a public sewer system”).
Although not directly on point, we find this Court’s reasoning in Natural Aggregates, supra, to
be instructive. The plaintiff in Natural Aggregates operated a sand and gravel processing business on
property zoned for such activity. Id. at 289-290.3 In 1989, the defendant township had adopted an
ordinance that required a yearly permit for such mining operations, as well as requiring that property
owners obtain “a separate permit and surety bond for bringing off-site fill material onto township
property.” Id. at 290-291. Relying on Justice Riley’s opinion in Square Lake, supra, the Natural
Aggregates Court noted that there is a difference between an ordinance that restricts the “use” of land
and an ordinance that regulates an “activity” taking place on the land. Id. at 300-301. The Court
concluded that because the ordinance at issue regulated the activity of removal of material from the
property and not the use of the plaintiff’s land as a sand and gravel mine, the ordinance was a
reasonable exercise of the defendant’s police power under the township ordinance act (TOA), MCL
41.181; MSA 5.45(1). Id. at 301-302.4
Based on the record before us, we conclude that it is unclear whether under the circumstances
of the case at hand the attempts to regulate plaintiffs’ water and sewage systems are reasonable
expressions of Sumpter’s authority to regulate for the public’s health, welfare, and safety. The parties
are instructed to address this issue on remand.
Conversely, we believe it is clear that Sumpter’s ordinance restricting to one the number of
dwellings that can be placed on a parcel is not a regulatory ordinance and is therefore encumbered by
the nonconforming use doctrine. However, after reviewing the record we conclude that a question of
fact exists concerning the lawfulness of the use of the smaller structure as a dwelling. While plaintiffs
contend that the structure has been used as a dwelling since at least 1977, Sumpter countered that the
3
The plaintiff had been operating the business since 1968. The zoning of the property for this purpose
occurred “[s]ometime around 1971.” Brighton Twp, supra at 290.
4
The TOA provides in pertinent part: “The township board of a township may, at regular or special
meeting by a majority of the members elect of the township board, adopt ordinances regulating the
public health, safety, and general welfare of persons and property . . . .” MCL 41.181; MSA 5.45(1).
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structure is a garage that has never been certified as a dwelling. See 83 Am Jur § 628, p 525. This
issue must also be addressed on remand.
Finally, plaintiffs argue the trial court erred in ruling that the township had the authority to install a
second septic system on the property. We agree. Both parties agree that Wayne County is responsible
for the supervision of plaintiffs’ septic system. Both the township building code and zoning ordinances
defer to the Wayne County Health Department in matters involving septic tanks.5 Further, it appears
that this is not the type of situation where a township is requiring a property owner to attach to a public
sewer. See Renne, supra at 689-690.
Reversed and remanded to the trial court for further proceedings consistent with this opinion.
We do not retain jurisdiction.
/s/ Donald E. Holbrook, Jr.
/s/ Jeffrey G. Collins
I concur in result only.
/s/ Michael J. Kelly
5
For example, the Sumpter Township Code states that “[t]he type, capacities, location and layout of a
Private Sewage Works shall comply with all recommendations of the Wayne County Health
Department.” Sumpter Township Ordinance, § 25-54.
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