High v. Cascade Hills Country Club , 173 Mich. App. 622 ( 1988 )

173 Mich. App. 622 (1988) 434 N.W.2d 199

HIGH
v.
CASCADE HILLS COUNTRY CLUB

Docket No. 97260.

Michigan Court of Appeals.

Decided December 19, 1988.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton (by John M. Donohue), for plaintiffs.

McShane & Bowie (by Terry J. Mroz), for Cascade Hills Country Club.

Varnum, Riddering, Schmidt & Howlett (by Randall W. Kraker and Matthew D. Zimmerman), for the Grand Rapids Township Building Inspector and Supervisor.

Before: SULLIVAN, P.J., and MacKENZIE and G. SCHNELZ,^[*] JJ.

G. SCHNELZ, J.

Plaintiffs appeal as of right from the circuit court's orders dismissing plaintiffs' complaint to enjoin the erection by defendant Cascade Hills Country Club of a maintenance building and affirming a decision of the Grand Rapids Township Board of Zoning Appeals (BZA) determining that the maintenance building was a lawful extension of a nonconforming use.

Plaintiffs have owned a house located at 3864 Cascade Road for over twenty years. Directly across the street from plaintiffs' home is the Cascade Hills Country Club. Since 1922, Cascade Hills has operated a golf course on approximately three thousand feet of frontage along Cascade Road. Pursuant to a Grand Rapids Township zoning ordinance adopted July 17, 1979, the Cascade Hills golf course became located within an R-1 single family residential and agricultural district. With adoption of the zoning ordinance, Cascade Hills continued as a nonconforming use.

On October 30, 1985, plaintiff Frederick High, returning home from work, noticed that Cascade Hills had begun erecting a maintenance shed in his line of view across Cascade Road. The following morning, High went to Grand Rapids Township Hall and inquired of the township supervisor about the construction. The supervisor advised High that Cascade Hills had applied for and received a permit to construct the maintenance building.

On October 31, 1985, plaintiffs filed their complaint seeking to enjoin the erection of the building which plaintiffs contended was both in violation of applicable zoning ordinances and a nuisance. The circuit court denied plaintiffs' request for a preliminary injunction. A short time later, Cascade Hills completed erection of the building.

In February, 1986, High requested from the BZA an interpretation of certain provisions of the Grand Rapids Township zoning ordinance. The BZA determined, in pertinent part, that the maintenance building was a lawful extension of an existing nonconforming use and that certain requirements contained in the zoning ordinance pertaining to front-yard set-back distances were not applicable in this case.

Plaintiffs filed a delayed claim of appeal from the BZA's decision. The appeal was consolidated with plaintiffs' circuit court action. On November 25, 1986, following a bench trial, the circuit court dismissed plaintiffs' complaint and affirmed the decision of the BZA.

The first issue raised on appeal is whether the trial court erred in finding that erection of the maintenance building was a permitted extension of a nonconforming use. Section 18.4 of the Grand Rapids Township zoning ordinance provides:

No nonconforming use of any land or structure shall hereafter be enlarged or extended, except that an enlargement or extension may be made of up to 50 percent of the floor area of the existing building or buildings devoted to a nonconforming use, provided that such extension or enlargement is made on adjoining land within the same block which was owned by the owner of the nonconforming use at the time this Ordinance becomes effective. No nonconforming building or structure shall be moved in whole or in part to another location unless such building or structure and the off-street parking spaces, yard and other open spaces there provided conform to all the regulations of that district.

When construing the provisions of a zoning ordinance, this Court seeks to discover and give effect to the legislative intent. Macenas v Village of Michiana, 160 Mich. App. 72, 77; 407 NW2d 634 (1987), lv gtd 430 Mich. 858 (1988). A zoning board of appeals has the authority to interpret a zoning ordinance which it administers. Id. Our review is de novo, but we accord great weight to the findings of the trial court and zoning board of appeals due to their opportunity to see and hear the witnesses. Id. The standard for granting appellate relief is whether our review of the record convinces us that we would have reached a different result had we sat as the trial court or zoning board of appeals. Id. In this case, we are convinced from our review of the record that the BZA's interpretation of § 18.4 is erroneous.

A use which is lawful at the time of the enactment of an ordinance may be continued even if the use is nonconforming under the ordinance. MCL 125.286; MSA 5.2963(16). However, it is the policy of this state and its communities that uses of property not conforming to municipal zoning ordinances be gradually eliminated. Madison Heights v Manto, 359 Mich. 244, 248-249; 102 NW2d 182 (1960). This policy is explained in Norton Shores v Carr, 81 Mich. App. 715, 720; 265 NW2d 802 (1978), lv den 403 Mich. 812 (1978):

Expansion of a nonconforming use is severely restricted. One of the goals of zoning is the eventual elimination of nonconforming uses, so that growth and development sought by ordinances can be achieved. Generally speaking, therefore, nonconforming uses may not expand. Fredal v Forster, 9 Mich. App. 215; 156 NW2d 606 (1967); Hillsdale v Hillsdale Iron & Metal Co, Inc, 358 Mich. 377; 100 NW2d 467 (1960). The policy of the law is against the extension or enlargement of nonconforming uses, and zoning regulations should be strictly construed with respect to expansion.

In the present case, § 18.4 severely restricts the "enlargement or extension" of a nonconforming use. In several respects, the maintenance building complies with the ordinance. The floor area of the maintenance building does not exceed fifty percent of the area of the buildings which existed on the Cascade Hills golf course in 1979. The maintenance building is located on adjoining land and on the same block as the main clubhouse. However, we note that the maintenance building is completely separate from and not physically attached to the main clubhouse or to any other Cascade Hills accessory building.

In Cole v Battle Creek, 298 Mich. 98; 298 N.W. 466 (1941), the plaintiff sought to extend a nonconforming use of his property through construction of two new wings onto the main building which housed plaintiff's retail greenhouse business. The relevant zoning ordinance allowed "structural alterations" of a nonconforming use subject to certain specifications. Our Supreme Court construed the ordinance to prohibit the erection of new nonconforming buildings or additions to existing nonconforming buildings:

As used in this ordinance, the word "alteration" means a change in that which already exists, for it is impossible to alter that which does not exist. If plaintiff merely wanted to install a new front on an existing building, such as was done in Paye v City of Grosse Pointe, 279 Mich. 254 [271 N.W. 826 (1937)], that might be a permissible alteration. But the erection of two new additions is not a structural alteration of an existing building. The test applied by the trial judge, i.e., comparison of square feet, would permit an almost indefinite continuance of a nonconforming use by periodic rebuilding, such as the tearing down of old structures and building of new ones provided slightly less floor space was included in the rebuilt structure.

Austin v Older, 283 Mich. 667 [278 N.W. 727 (1938)], is almost directly in point. We there held that the structural changes and additions which Older contemplated would constitute a prohibited extension of a nonconforming use. The continuation of a nonconforming use in this zoning ordinance is designed to avoid the imposition of hardship upon the owner of property, but the limitations upon such use contemplate the gradual elimination of the nonconforming use.

Plaintiff's petition contemplates structural alterations in and additions to the Wendell street building which are not permitted by the terms of paragraph 2 of section 7 of the ordinance.

The court erred in holding that a building permit should issue. [Cole, supra, pp 103-104.]

We find the language of § 18.4 of the Grand Rapids Township zoning ordinance to be substantially similar to that of the ordinance construed by the Supreme Court in Cole. As with "alter," it is impossible to "enlarge" or "extend" that which does not exist. Here, the structure serves a whole new use different from that of the existing structures and, moreover, is a completely separate structure. Thus, the building is not an "enlargement or extension" of a nonconforming use. We therefore find defendants' construction violative of the ordinance. To hold otherwise would permit a result contrary to the public policy of gradually eliminating nonconforming uses. Manto, supra. Accordingly, we reverse the trial court's order affirming the BZA's determination that construction of the maintenance building was permitted by § 18.4.

Plaintiffs also contend that the maintenance building is a nuisance per se and that they are entitled to an abatement of the nuisance. We agree. Use of land in violation of local ordinance is a nuisance per se. MCL 125.294; MSA 5.2963(24); Independence Twp v Eghigian, 161 Mich. App. 110, 114; 409 NW2d 743 (1987), lv den 429 Mich. 872 (1987). Similarly, § 19.5 of the Grand Rapids Township zoning ordinance provides:

Any building erected, altered, raised or converted, or any use of land or structure carried on in violation of any provision of this ordinance is hereby declared to be a nuisance per se.

The fact that defendant Cascade Hills constructed the maintenance building in reliance on an issued building permit does not deprive plaintiffs of their right to equitable relief where the issuance of the permit was in violation of the ordinance. See Jones v DeVries, 326 Mich. 126, 135-139; 40 NW2d 317 (1949). We note that plaintiffs promptly sought to enjoin defendants from erecting the structure and that defendants proceeded at their own risk. Plaintiffs are not required to show the existence of a nuisance in fact or irreparable harm resulting from the maintenance of the nuisance. Independence Twp v Skibowski, 136 Mich. App. 178, 184; 355 NW2d 903 (1984), lv den 422 Mich. 853 (1985); Bruggeman v Minster, 42 Mich. App. 177; 201 NW2d 344 (1972), lv den 388 Mich. 780 (1972).

MCL 125.294; MSA 5.2963(24) additionally provides that a court shall order that a nuisance per se, such as a building erected in violation of a local ordinance, shall be abated. Plaintiffs are accordingly entitled to such relief. We therefore reverse the judgment of no cause of action on plaintiffs' complaint and remand this case to the circuit court for entry of an order in accordance with this opinion.

Reversed and remanded.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.