Towne v. Harr , 185 Mich. App. 230 ( 1990 )

185 Mich. App. 230 (1990) 460 N.W.2d 596

TOWNE
v.
HARR

Docket No. 113632.

Michigan Court of Appeals.

Decided August 22, 1990.

French & Lawrence (by Daniel H. French and Thomas M. Canny), for plaintiffs.

Stone, Campbell & Schofield (by C.F. Schofield), for defendants Harr.

Before: CAVANAGH, P.J., and McDONALD and MARILYN KELLY, JJ.

McDONALD, J.

Defendants Dennis and Sherrie Harr appeal as of right from an October 24, and December 8, 1988, circuit court opinion and order finding plaintiffs, as private property owners, proper parties to institute an action to abate a public nuisance stemming from the Harrs' erection of a pole building in violation of local zoning ordinances and ordering abatement of the same. We reverse.

Although the Harrs raise several issues on appeal, we find one issue dispositive. The Harrs claim private citizens, such as the instant plaintiffs, have no standing to secure an abatement of a nuisance per se under the Township Rural Zoning Act where the citizens cannot prove special damages. We agree.

The use of land in violation of local ordinances constitutes a nuisance per se, MCL 125.294; MSA 5.2963(24).^[1] This statute further provides that the township board enacting the ordinances shall administer and enforce the same and that the court shall order such nuisance abated. Thus, pursuant to the statute, any violation of a local township zoning ordinance constitutes a nuisance per se and is to be ordered abated by the court upon an action being brought by the officials designated to administer and enforce the ordinance.

Given the purpose for which zoning ordinances are enacted and enforced, we believe a nuisance arising from the violation of the same must by its very nature constitute a "public" nuisance. Generally, a public nuisance gives no right of action to an individual and must be abated by the appropriate public officer. However, our Supreme Court has long recognized the propriety of private citizens bringing actions to abate public nuisances, arising from the violation of zoning ordinances or otherwise, when the individuals can show damages of a special character distinct and different from the injury suffered by the public generally. Morse v Liquor Control Comm, 319 Mich. 52; 29 NW2d 316 (1947); Plassey v S Lowenstein & Son, 330 Mich. 525; 48 NW2d 126 (1951). Enactment of MCL 125.294; MSA 5.2963[24], rendering buildings erected in violation of local zoning ordinances nuisances per se, does not vitiate a private individual's longstanding right to bring an action to abate a public nuisance. Indian Village Ass'n v Shreve, 52 Mich. App. 35; 216 NW2d 447 (1974). Instead, the statute's designation of all buildings erected in violation of local ordinances as nuisances per se reduces the quantity of proofs required of an individual to prove a public nuisance, as the existence of the nuisance may be established merely by showing a violation of the ordinance. Thus, individuals need not prove a nuisance in fact, as the zoning violation renders the building a nuisance per se. Bruggeman v Minster, 42 Mich. App. 177; 201 NW2d 344 (1972); Indian Village, supra. However, contrary to plaintiffs' assertions on appeal, neither Bruggeman nor Indian Village relieves an individual bringing suit to abate a public nuisance from the burden of proving special damages. Any such attempt by this Court to do so would necessarily fail, as an individual's proof of special damages has been a longstanding requirement under Michigan's common law, dating back at least as far as 1872. See Clark v Lake St Clair & New Up-River Ice Co, 24 Mich. 508 (1872), see also Morse, supra, and Plassey, supra.

In the instant case the trial court's findings indicate plaintiffs failed to prove special damages resulting from the Harrs' violation of the zoning ordinance. Plaintiffs therefore had no standing to bring the instant suit to abate the nuisance, and the trial court's order granting plaintiffs said relief must be vacated.

Although it is seemingly unjust to deny the plaintiffs standing to seek abatement of the instant nuisance, we note that plaintiffs are not without recourse. However, plaintiffs' recourse must be achieved through their township officials who under the statute are given no discretion but to enforce the local zoning ordinances.

Reversed.

NOTES

[1] Uses of land ... in violation of local ordinances or regulations adopted under the authority of this act are a nuisance per se. The court shall order the nuisance abated and the owner or agent in charge of the dwelling, building, structure, tent, trailer coach, or land is guilty of maintaining a nuisance per se. The township board shall in the ordinance enacted under this act designate the proper official or officials who shall administer and enforce that ordinance and provide penalties for the violation of the ordinance.