Minding Your Zoning Ps & Qs
By Aileen Leipprandt
Some say it’s better to beg forgiveness than ask permission. That’s not the case when it comes to complying with zoning ordinances, as recently learned by defendants in a zoning enforcement action brought by the Village of Pentwater.
In Village of Pentwater v Bates, (March 2017), Bates bought a 12×12 storage shed and moved it to an 8-acre wooded, vacant parcel in the Village of Pentwater. Bates initially claimed that village officials said they didn’t need a permit to place the shed on the parcel. Later, the zoning administrator informed Bates that because the parcel was within a single family residential zone, the shed was permitted only if it was an accessory building to a residential structure. Bates responded that they intended to build a house on the parcel. They then received a zoning permit to build a house. Thereafter, however, Bates abandoned any immediate plans to build the home.
The Village demanded that Bates remove the building because it violated the zoning ordinance. When Bates refused, the Village filed suit seeking a court order that the shed be removed. The trial court agreed with the Village and ordered Bates to remove the shed. Bates appealed arguing that the zoning ordinance constituted an unconstitutional delegation of power to the Village because the ordinance prohibited activities that posed no significant harm to the community. They argued that allowing their small storage shed on a large wooded parcel within the Village would not offend neighbors or stymie future residential development.
The appellate court rejected Bates argument, ruling that the issue was not whether the building posed a threat of harm to the community but rather, whether Bates could overcome the presumption that the ordinance was reasonable. The appellate court deemed it reasonable for the Village to limit construction of accessory buildings to preserve the residential nature of the area. Furthermore, the ordinance was not an arbitrary restriction on the Bateses property interest because the ordinance applied uniformly to all parcels and because the ordinance allowed construction of a shed, so long as the building was accessory to a main building.
Bottom line? Be attentive to zoning requirements and obtain all required approvals. A strategy based upon begging forgiveness may backfire, resulting in costly litigation or perhaps worse, a tear down.