Garb-Ko, Inc. v. Carrollton Township

86 Mich. App. 350 (1978) 272 N.W.2d 654

GARB-KO, INC.,
v.
CARROLLTON TOWNSHIP

Docket No. 77-3992.

Michigan Court of Appeals.

Decided October 3, 1978.

Albert C. Reinert, for plaintiffs.

Richard A. Mertz, for defendant.

Before: D.E. HOLBROOK, P.J., and M.J. KELLY and P.J. MARUTIAK,^[*] JJ.

PER CURIAM.

This is an appeal by right of the trial court's order limiting the operating hours of the plaintiffs' business establishment. In 1949, Stanley Klenk erected the building in question located in Carrollton Township, Saginaw County, Michigan. Mr. Klenk operated the building as a grocery store until 1959, and kept the hours of 8 a.m. to 10 p.m.

In 1959, Carrollton Township passed a zoning ordinance which placed the property in question in a residential zone. The property was allowed to operate as a nonconforming use and continues to be used as a grocery store until the present time.

In 1959, Mr. Klenk sold the grocery business (not the building itself), and the business was later resold. The various grocery store owners generally operated the business from 8 a.m. to 10 p.m.

In 1971, the plaintiff, Garb-Ko, Inc., agreed to lease the store for a 7-11 operation if the building was refurbished. Mr. Klenk secured a building permit from the township to refurbish the building and in 1971 leased the building to the plaintiff, Garb-Ko, for the operation of their 7-11 store. No conditions or restrictions as far as hours of operation were imposed by the township at the time of the issuance of the building permit for the refurbishing.

When the store first opened in 1971, its hours of operation were from 7 a.m. to 11 p.m. Shortly after its opening, the store hours were changed to 6 a.m. to 12 midnight and after a short time were again changed to 6 a.m. to 2 a.m.

On November 8, 1974, the township board advised the plaintiffs by mail that they must cut back their hours of operation to 7 a.m. to 11 p.m. On July 30, 1975, the plaintiffs commenced this action against the township, seeking to temporarily and permanently restrain the township from interfering with plaintiffs' hours of operation. The township filed a counterclaim against the plaintiffs, asking the court to temporarily and permanently restrain the plaintiffs from extending the hours of operation of the 7-11 store beyond 7 a.m. to 11 p.m.

Testimony was adduced at trial as to the traffic noise and disturbances at the 7-11 store after 11 p.m., and as to the plaintiffs' desire to operate the store on a 24-hour-a-day basis.

The trial court denied the plaintiffs' prayer for permanent injunction and ordered that the plaintiffs may not operate their 7-11 store beyond the hours of 7 a.m. to 11 p.m.

The plaintiffs appeal by right. The precise question on appeal is whether the extension of hours of a grocery store operating as a nonconforming use constitutes an expansion of the nonconforming use which can be lawfully restricted by the defendant township.

Although this precise question has not heretofore been addressed, Michigan courts have, on various occasions, set forth the policy and purpose of the law relating to nonconforming uses.

In Dearden v Detroit, 70 Mich. App. 163, 169; 245 NW2d 700 (1976), this Court stated:

"``[I]t is the law of Michigan that the continuation of a nonconforming use must be substantially of the same size and same essential nature as the use existing at the time of passage of a valid zoning ordinance.' White Lake Township v Lustig, 10 Mich. App. 665, 674; 160 NW2d 353 (1968)."

In Norton Shores v Carr, 81 Mich. App. 715, 720; 265 NW2d 802 (1978), the Court stated:

"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."

The trial court's finding that the extension of operating hours constituted an expansion of the nonconforming use is consistent with the aforementioned policy. While this Court reviews equity cases de novo, the findings of the trial court will not be disturbed unless this Court would have arrived at a different result had it been in the position of the trial court. Biske v City of Troy, 381 Mich. 611; 166 NW2d 453 (1969). In view of the policy against the expansion of a nonconforming use, and the fact that the Michigan courts, in reviewing the question of expansion, have emphasized the scope and nature of the nonconforming use as existing at the time of the passage of a valid ordinance, it cannot be said that this Court would have reached a conclusion different from that of the trial court.

Affirmed.

NOTES

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