BRIAN VANFAROWE V CASCADE CHARTER TWP
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STATE OF MICHIGAN
COURT OF APPEALS
BRIAN VANFAROWE and RAJINI
VANFAROWE,
UNPUBLISHED
November 8, 2007
Plaintiffs-Appellants,
v
No. 264189
Kent Circuit Court
LC No. 05-004313-AV
CASCADE CHARTER TOWNSHIP and
GOODWOOD PLAT OWNERS, INC.,
Defendants-Appellees.
Before: Fort Hood, P.J., and Smolenski and Murray, JJ.
MURRAY. J., (concurring).
I concur in the majority opinion, which reverses the trial court’s order and remands for a
determination as to the existence of any nonconforming use of the easement. I write separately
to expand upon the reasoning employed by the majority.
As the trial court recognized in its thorough and well-written opinion, there appears to be
no case law in Michigan, or for that matter anywhere else in the United States, that decides
whether an easement such as the one in the instant case qualifies, in and of itself, as a
nonconforming use for purposes of a local zoning ordinance. In the absence of such case law,
the trial court nevertheless concluded that the easement was sufficient to constitute a
nonconforming use because the same policies behind finding nonconforming use as a result of
substantial use and improvements to property existed to a situation involving a restrictive
easement. After canvassing Michigan law on this subject, however, it is my view that the
easement was not sufficient by itself to constitute a nonconforming use.
In Heath Twp v Sall, 442 Mich 434, 439; 502 NW2d 627 (1993), the Supreme Court set
forth the definition for a prior nonconforming use:
A prior nonconforming use is 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. Dusdal v City of
Warren, 387 Mich 354, 359-360; 196 NW2d 778 (1972). In other words, it is a
lawful use that existed before the restriction, and therefore continues after the
zoning regulation’s enactment. Generally, to establish a prior nonconforming use,
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a property owner must engage in “work of a ‘substantial character’ done by way
of preparation for an actual use of the premises.” [Citation omitted in part;
emphasis supplied.]
Thus, in most all of the cases discussing what constitutes a prior nonconforming use, the courts
have required that the party seeking to establish the nonconforming use provide evidence that
work of a substantial character had been done in preparation for the use of those premises in a
nonconforming way when the zoning ordinance is amended.
The critical difference between the trial court’s holding and the case law is the fact that a
right to use an easement is not the same thing as using the easement. In general, an easement is
the right to use another’s land for a specific purpose that is not inconsistent with the other’s
ownership interest. Michigan Dep’t of Nat’l Resources v Carmody-Lahti Real Estate Inc, 472
Mich 359, 379 n 42; 699 NW2d 272 (2005). Thus, an easement gives the holder a right to use
the property in a particular manner, while under Michigan law, an actual use of the property
must exist to constitute a nonconforming use. MCL 125.3208(1); Heath Twp, supra at 438;
Gackler v Yankee Springs Twp, 427 Mich 562, 574-575; 398 NW2d 393 (1986); In re Central
Baptist Theological Seminary, 370 NW2d 642, 647 (Minn App, 1985) (“A nonconforming use is
an actual use.”)
If an actual use exists at the time the zoning change takes place, that nonconforming use
is preserved, but cannot be expanded once the zoning change occurs. Jerome Twp v Melchi, 184
Mich App 228, 231; 457 NW2d 52 (1990). But if the actual use is not “up and running” at the
time of the zoning change but is instead in the process of becoming so, the court will employ the
“work of a substantial character” test to determine whether the property was being used for a
nonconforming use. Heath, supra. Accordingly, it is not enough to have a right to use the
property in a particular way, as there is a distinction between the right to use land and the actual
use of the land. See, e.g., Miller v Thomas, 201 Wis 2d 675, 691; 550 NW2d 134 (1996)
(Brown, J., concurring).
This rationale is also consistent with well-settled law providing that the intent to use
property in a certain way, and the preparations to use property in a certain way, are not sufficient
to meet the “work of a substantial character” test because the focus is on the actual use of the
property. Gackler, supra; Heath, supra at 440-442; City of Lansing v Dawley, 247 Mich 394,
397; 225 NW 500 (1929). It is a property owner’s use of the property in a particular manner that
is preserved under the nonconforming use doctrine, and that doctrine helps preserve the property
owner’s constitutional right to utilize their property as they had been prior to the zoning
amendment. Here, however, there is no evidence that any of the property owners utilized the
easement for the intended purpose, i.e., a boat ramp. Although the record also does not appear to
support such a conclusion, an evidentiary hearing will allow the parties to expand upon this
evidence. That is why I concur in a remand.
Unlike the trial court, I cannot glean from the case law a rule of law that provides a
property owner with protection from a change in zoning in the absence of substantial use of the
property in that particular manner. In order to conclude as did the trial court, a case would have
to stand for the proposition that a property owner is exempted from the current application of a
zoning ordinance simply because the property owner “could have” utilized the property in a
particular manner because of an easement, but in fact never did so. However, if the property
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owner never utilized the property in any particular way before the zoning amendment, there was
no use conforming to the prior zoning, and the property is subject to the zoning amendment.
/s/ Christopher M. Murray
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