ARTICLE IV. NONCONFORMITIES1
40-762. Intent.
Nonconformities are uses, structures, buildings or lots that do not conform to one or more provisions or requirements of this chapter or to any subsequent amendment, but which were lawfully established prior to the time of adoption of the ordinance or amendment. Such nonconformities are not compatible with the current or intended use of land in the district in which they are located. Therefore, it is the intent of this chapter to permit such nonconformities to continue under certain conditions, but to discourage their expansion, enlargement or extension. Accordingly, the purpose of this article is to establish regulations that govern the completion, restoration, reconstruction, extension and/or substitution of nonconformities, and to specify the circumstances and conditions under which the nonconformities shall be permitted to continue.
(Ord. No. 147-43, § 3.000, 12-15-2003)
40-763. General requirements.
The following regulations shall apply to all nonconforming uses, structures, buildings and lots:
(1) Continuation of nonconforming uses, structures and/or buildings. Any nonconforming use established on or before the effective date of the ordinance from which this chapter is derived or amendment thereto may be continued and shall not be considered to be in violation of this chapter, provided that the structure, building and land involved shall neither be structurally altered nor enlarged unless such modifications conform to the provisions of this chapter for the zoning district in which it is located, unless otherwise noted in this chapter. Nothing in this chapter shall be deemed to prevent the strengthening or restoration of any building or structure or part thereof to a safe condition when said building is declared to be unsafe by an order of an official charged with protecting the public safety.
(2) Buildings under construction. To avoid undue hardship, nothing in this chapter shall be deemed to require a change in plans, construction or designated use of any structure or building on which physical construction was lawfully begun prior to the effective date of adoption or amendment of the ordinance from which this section is derived, and upon which actual building construction has been diligently continued. Physical construction is hereby defined to include the placing of construction materials in a permanent position and fastened in a permanent manner. Where demolition or removal of an existing building has been initiated preparatory to rebuilding or permanent construction, such work shall be deemed to be physical construction, provided that such work shall be continued diligently until completion of the building involved.
(3) Discontinuation of nonconforming uses, structures and/or buildings.
a. Nonconforming structure or building. When a nonconforming use of a structure or building, or the use of a structure or building and land in combination, is discontinued or abandoned for a period exceeding 180 calendar days, the structure, building, structure and land in combination, or building and land in combination, shall not thereafter be used except in conformance with the provisions of the zoning district in which it is located.
b. Nonconforming uses of land. If any nonconforming use of land ceases for any reason for a period exceeding 180 calendar days, any subsequent use of such land shall conform to the provisions set forth of the zoning district in which it is located.
c. Seasonal uses. In applying this subsection to uses that are typically seasonal in nature, any time related to the off-season for the use shall not be counted. In the case of seasonal uses, if a nonconforming use of a structure or building, or a structure or building and land in combination, is discontinued or abandoned for a period exceeding 365 calendar days, the structure or building, or structure or building and land in combination, shall not thereafter be used except in conformance with the provisions of the zoning district in which it is located.
(4) Purchase or condemnation. In order to accomplish the elimination of nonconforming uses, structures and/or buildings that constitute a nuisance or are detrimental to the public health, safety and welfare, the township, pursuant to section 208(3) of Public Act No. 110 of 2006 (MCL 125.3208(3)), may acquire by purchase, condemnation or otherwise, private property for the purpose of removal of nonconforming uses, structures and/or buildings. Where acquisition is contemplated, the procedures set forth in section 40-766 shall be followed.
(5) Recording of nonconforming uses, structures and/or buildings. The zoning official shall be responsible for maintaining the records of nonconforming uses, structures and/or buildings in a manner that is as accurate as feasible. The zoning official may make determinations as to the existence of legal nonconforming uses, structures and/or buildings on the effective date of the adoption of the ordinance from which this chapter is derived. Failure on the part of a property owner to provide the zoning official with necessary information to determine legal nonconforming status may result in denial of required or requested permits.
(6) Establishment of a conforming use. If a nonconforming principle use is superseded by a principle use allowable within the zoning district, the nonconforming use, structure and/or building shall be immediately and permanently removed.
(7) Change of tenancy or ownership. In the event there is a change in tenancy, ownership or management, an existing nonconforming use, structure and/or building shall be allowed to continue provided there is no change in the nature or character of such nonconformity and the use, structure and/or building is otherwise in compliance with this chapter.
(8) Exceptions and variances. Any use, structure and/or building for which a special exception or variance has been granted as provided in this chapter shall not be deemed a nonconformity. If any future amendment to this chapter causes a nonconforming situation regarding the exception or variance, the use shall become a nonconformity on the effective date of said amendment to this chapter.
(9) Unlawful nonconformities. Any nonconformity that was unlawful at the time it was established shall not become a lawful nonconformity because of the adoption of this amendment to this chapter.
(10) Substitution. A nonconforming use may be changed to another nonconforming use upon review and approval of the ZBA provided that no structural alterations are required to accommodate the new nonconforming use, and that the proposed use is equally appropriate or more appropriate in the zoning district than the existing nonconformity. In permitting such a change, the ZBA may require special conditions upon the new use to accomplish the purposes of this chapter.
(11) Change of location. Should a nonconforming structure or building be moved to another parcel or to another location on the same parcel for any reason whatsoever, it shall conform to the regulations for the zoning district in which it is then located.
(Ord. No. 147-43, § 3.001, 12-15-2003)
40-764. Nonconforming lots of record.
The following regulations shall apply to any nonconforming lot of record or nonconforming lot described in a deed or land contract executed and delivered prior to the effective date of the ordinance from which this chapter is derived or amendment thereto:
(1) Use of nonconforming lots. Any nonconforming lot shall be used only for a use permitted in the zoning district in which it is located. In any district in which single-family dwellings are permitted, notwithstanding limitations imposed by other provisions of this chapter, a single-family dwelling and customary accessory building may be erected on any single lot of record in existence on the effective date of adoption or amendment thereto. This provision shall apply even though such single-family lot fails to meet the requirements for area or width, or both, provided that the lot can be developed as proposed without any significant adverse impact on surrounding properties or the public health, safety and welfare.
(2) Variance from area and bulk requirements. If the use of a nonconforming lot requires a variation from the area or bulk requirements, then such use shall be permitted only pursuant to a variance granted by the ZBA.
(3) Nonconforming contiguous lots under the same ownership. If two or more lots or combination of lots with contiguous frontage in single ownership are of record at the time of adoption or amendment of this chapter, and if all or part of the individual lots do not meet the requirements established for lot width and area, the lots involved and the entire combined area shall be considered as a singular, individual parcel for the purposes of this chapter. No portion of said parcel shall be used, occupied or sold in a manner that diminishes compliance with lot width and area requirements established by this chapter, nor shall any division of a parcel be made that creates a new lot with width or area less than the requirements stated in this chapter. These provisions shall not apply to contiguous lots in single ownership where each of the lots is occupied by an existing dwelling unit.
(4) Combination of nonconforming lots. Upon application to the zoning official, the zoning official may permit the combination, in whole or in part, of nonconforming lots of record into building sites that combine in dimensions less than the minimum requirements established by this chapter, provided that the combination of lots reduces the degree of nonconformity and results in a parcel that is capable of accommodating a structure or building that conforms with the building area, setback and side yard requirements for the zoning district in which it is situated.
(Ord. No. 147-43, § 3.002, 12-15-2003)
40-765. Modification to nonconforming uses, structures and/or buildings.
No nonconforming use, structure and/or building shall be enlarged, extended or structurally altered, nor shall any nonconformity be changed to a different nonconformity that increases the intensity of use or nonconformity, except as specifically permitted by the regulations that follow:
(1) Applicability. The following regulations shall apply to any nonconforming use, structure and/or building including:
a. Nonconforming uses of open land.
b. Nonconforming use of buildings designed or used for a conforming use.
c. Nonconforming use of buildings specifically designed for the type of use that occupies them but is not suitable for a conforming use.
d. Buildings designed and used for a conforming use but not in conformance with area and bulk, parking, loading or landscaping requirements.
e. Nonconforming structures, such as fences and signs.
(2) Enlargement, extension or alteration.
a. Increase in extent of nonconformity; prohibition. Except as specifically provided in this section, no person may engage in any activity that causes an increase in the extent of any nonconformity to this chapter. For example, physical alteration of structures or buildings or the placement of new structures or buildings on open land is unlawful if such activity results in:
1. An increase in the total amount of space devoted to a nonconforming use;
2. Greater nonconformity with respect to dimensional restrictions, such as setback requirements, height limitations or density requirements; or
3. Other requirements in the district in which the property is located.
b. Permitted extension. Any nonconforming use may be extended throughout any part of a building on that was manifestly arranged or designed for such use at the time of adoption or amendment of the ordinance from which this chapter is derived, but no such use shall be extended to occupy any land outside such building. No nonconforming use of land shall be enlarged, increased or extended to occupy a greater area of land, nor shall any such use be moved in whole or in part to any portion of the lot or parcel than was occupied on the effective date of the ordinance from which this chapter is derived or any amendment thereto.
c. Alterations that decrease nonconformity. Any nonconforming structure or building, or any structure or building, or portion thereof, containing a nonconforming use, may be altered if such alteration serves to clearly decrease the nonconforming nature of the structure, building and/or use. The zoning official shall determine if a proposed alteration decreases the degree of nonconformity.
d. Variance to area and bulk requirements. If a proposed alteration is deemed reasonable by the zoning official for the fact that it would decrease the nonconforming nature of a structure, building and/or use, but the alteration requires a variation to area or bulk requirements, then such alteration shall not be permitted unless a variance is granted pursuant to action by the ZBA.
(3) Repairs, improvements, and modernization.
a. Required repairs. Repairs or maintenance deemed necessary by the zoning official to maintain a nonconforming building in a structurally safe and sound condition are permitted. If a nonconforming structure or building, or a structure or building that contains a nonconforming use becomes physically unsafe, dangerous and/or unlawful due to the lack of maintenance and repairs and is formally declared as such by the building official, it shall not thereafter be restored, repaired or rebuilt except in full conformity with the regulations in the zoning district in which it is located.
b. Permitted improvements. Repairs, improvements or modernization of nonconforming structures or buildings shall be permitted, provided that such repairs or improvements do not exceed the most recent state equalized value (SEV; as determined by the township assessor) of the structure or building during any period of 12 consecutive months. Any such repairs, improvements and modernization shall not result in enlargement of the cubic content of the nonconforming structure or building. The provisions in this subsection shall apply to all structures and/or buildings, except as otherwise provided in this chapter for single-family residential uses, and for reconstruction of structures and/or buildings damaged by fire or other catastrophe.
(4) Damage by fire or other catastrophe.
a. Any nonconforming structure or building, or any structure or building that contains a nonconforming use that is damaged by fire, flood or other means to a point where the cost of repairs will be in excess of the structure and/or building’s pre-catastrophe state equalized value (as determined by the township assessor) shall not be rebuilt, repaired or reconstructed except in complete conformity with the provisions of this chapter.
b. In the event that the cost of repairing the damage is less than the structure or building’s pre-catastrophe state equalized value (as determined by the township assessor), the structure or building may be restored to its pre-catastrophe status. Such restoration shall take place only upon approval of the building official and all construction shall be in full compliance with applicable provisions of this chapter and other applicable township codes. Any request for such rebuilding, repair or restoration shall be made to the zoning official within 180 days following the incident. Any such rebuilding, repair or restoration shall be completed within one year from the date of the catastrophe.
(Ord. No. 147-43, § 3.003, 12-15-2003)
40-766. Acquisition of nonconforming buildings, structures or uses.
The zoning official, from time to time, may recommend to the township board of trustees the acquisition of private property for the purpose of removal of nonconformities. Where such acquisition is contemplated, the following procedures shall be followed:
(1) Zoning official documentation and recommendation. Prior to instituting acquisition, the building official shall prepare or cause to have prepared a report for the board of trustees. The report shall include the following:
a. A list of all requirements of this chapter that are not met by the subject property.
b. An estimate of the expense of such acquisition.
c. An estimate of the cost of removing the nonconformities.
d. An estimate of the probable resale price of the property after acquisition and removal of the nonconformities.
e. Recommendations concerning the allocation of costs to be incurred by the township.
(2) Board of trustees consideration.
a. Public hearing. After receiving and reviewing the report from the zoning official, the board of trustees shall determine if acquisition of the nonconforming property should be pursued. If the board of trustees decides to pursue acquisition, then it shall first set a public hearing. Not less than 15 calendar days prior to the public hearing, notice of the time, place and purpose of the public hearing shall be published in the official newspaper of the township, and sent by mail to the owners of property for which acquisition is being considered. The notice shall be sent to the owner’s address as stated in the most recent assessment roll.
b. Special assessment. If any or all of the expense related to acquisition of the subject property is assessed to a special district, then the township assessor shall be directed to furnish the board of trustees with a tentative special assessment district and tentative plan of assessment. The names and addresses of the owners of property located in the district (as stated in the latest assessment roll) shall be provided to the board of trustees. Notice of the time, place and purpose of the public hearing shall be sent by mail to the owners of property located in the tentative special assessment district.
c. Board of trustees determination. If, following the public hearing, the board of trustees finds that elimination of the nonconforming use, structure and/or building would be for a legitimate public purpose, then it shall declare by resolution of the board that the township shall proceed to acquire the nonconforming use, structure and/or building in accordance with the laws of the state and applicable township ordinances. The township clerk shall send by registered mail a certified copy of the resolution of the board of trustees to the owners of property to be acquired and to owners of property in any special assessment district, at the addresses stated in the latest assessment roll.
(3) Removal of nonconformity. Upon passing of title of the property so acquired by the township, the township board of trustees shall cause the discontinuance or removal of the nonconforming use, or the removal or demolition or remodeling of the nonconforming building or structure.
(4) Disposition of property. The board of trustees may thereafter elect to retain all or part of the property so acquired for municipal purposes. If acquisition costs and expenses are to be assessed against a special assessment district, the amount to be assessed shall be reduced by the market value of any part of the property retained for municipal use, as determined by the township assessor. The board of trustees shall thereafter order the sale of the portion of the property not retained for municipal purposes, but only for use in conformance with this chapter. The board of trustees shall confirm the expenses related to the project and report the assessable cost to the township assessor, who shall then prepare an assessment roll in the manner provided for by law. Such an assessment may, at the discretion of the board of trustees, be paid in one or more, but not to exceed ten, annual installments.
(Ord. No. 147-43, § 3.004, 12-15-2003)
40-767—40-785. Reserved.
State Law reference—Nonconforming uses or structures, MCL 125.3208.