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REAL ESTATE 52: Zoning board found that changes in product altered the property’s use under the zoning ordinance.

The Plaintiffs purchased the property in question in 1992. The property is zoned C-1, commercial district, and may be used for retail sales of goods and services. From 1992 to 2006, the Plaintiffs operated a ceramics shop in the commercial building on the land. It is important to note that historically the property has not complied with physical zoning requirements pertaining to setback, parking, and lighting.

When the Plaintiffs rebranded their shop and began selling more general merchandise, the township objected. In 2007, the Township Zoning Board of Appeals (ZBA) found that the Plaintiffs’ addition of more general merchandise was not an alteration of the property and therefore the Plaintiffs were not required to submit a site plan or to bring the property physically into compliance with the zoning ordinance.

In 2014, the Plaintiffs entered a lease with a tenant who intended to open a store selling packaged liquor on the property. Liquor stores were then a permitted retail use in the C-1 district, and the Plaintiffs did not plan any physical alterations to the property. However, the township treated the planned liquor store as an alteration or expansion of use under the zoning ordinance and instructed the Plaintiffs to submit a site plan incorporating updates to bring the property into compliance with setback, parking, and lighting requirements.

The Plaintiffs asserted that they had a vested right to the nonconforming use of the property and that, provided they did not alter or expand the nonconforming physical aspects of their property, they could switch from one retail use to another without submitting a site plan or bringing the property into compliance.

A lengthy battle ensured before the township planning commission and the ZBA. In June 2018, the ZBA found that changes in the product for sale as well as concerns relating to potential increases in store hours rendered the proposed liquor store an extension, alteration, or addition of the property’s use under the zoning ordinance. As a result, the ZBA concluded that the Plaintiffs could not open a liquor store without first submitting a site plan that conformed to the physical requirements of the zoning ordinance.

Aldrich Legal Services offers comprehensive real estate services for homeowners, commercial property owners, investors, real estate developers and other parties with real estate interests in Michigan.

Aldrich Legal Services can help you seek alternative relief under the applicable zoning ordinances, such as requesting a variance.

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