Dingeman Advertising, Inc v. Algoma Township

J. H. Gillis, J.

(dissenting). I think plaintiffs case lies within the exception expressed in City of Lansing v Dawley, 247 Mich 394 (1929). The stated rule, which is pragmatic and objective, is also tailored to the Dawley facts. The property owner’s purpose in Dawley was the construction of a building; thus razing of old structures with no further action was insufficient to vest rights. In that case, no tangible change in the character of the land by excavation and construction had taken place. City of Lansing v Dawley, supra, citing Rice v Van Vranken, 132 Misc 82; 229 NY Supp 32 (1928).

I believe the proper application of Dawley is first to inquire about the character of use to which the land will be put before asking whether tangible change has occurred. I agree with plaintiff; tangible change of a substantial nature is a relative question. De Mull v City of Lowell, 368 Mich 242 (1962), applied the Dawley test; the Court found that initiating construction of a 7-foot fence^* was sufficient to vest property rights in a junkyard prior to enactment of a new zoning ordinance. The Court focused on the substantial work performed by plaintiff in utilizing the property in accordance with the permit.

I think De Mull v City of Lowell, supra, is analogous to this case. The only tangible changes in the property were the staking of the sign and the erection of the power pole. However, plaintiff had performed substantial work in utilizing the property in accordance with the existing zoning ordinance and permit issued to him for erection of a billboard. He had purchased the land, executed a land contract, obtained a building permit, negotiated and completed an advertising contract, staked the location, caused a pole and transformer to be placed on the land, and began construction of the sign at his shop in Traverse City, expending $2,-645. According to these facts, following De Mull, plaintiff has a vested property interest and a valid nonconforming use.

A substantial issue in this case was the problem of notice. Defendants assert actual notice was unnecessary. In Dawley the property owner had been notified of the revocation of his building permit three months prior to the commencement of construction. In this case, notice was first received when the stop order was served on the construction crew.

I would, therefore, vote to affirm the trial court.

* This was the only tangible effect on the real estate. The plaintiff had also performed these acts: He entered into a purchase agreement, executed a land contract for purchase, purchased some automobiles, ordered fence posts, and obtained a dealer’s license.