Could revoking a conditional use be considered a taking?

[AG74683]

Obviously not if the permit is clearly being violated, but this is an interesting situation.

Due to administrative error (previous planner), the permit only considers a single parcel, when in fact activity was occurring on at least two others. The permit occurred after the business was created.

A new owner recently purchased the land, with the understanding that the permit runs with the land. A neighbor is actively fighting the previous CUP now, she believes it to be invalid on two of the three parcels he purchased.

I believe that revoking the permit will substantially diminish the new owners property value, as he purchased the property with the intent to operate a business based in the previous permit.

Is there any precedent to this? Any cases I can reference to get the complainant to understand the situation?

[mike gurnee]

I would go back to the body that issued the permit for clarification. Do the minutes of the hearing reflect that the multi-parcel zoning lot was being considered? How was the pubic notice disseminated? Were some property owners not notified if the entire property was properly identified? How was the property identified on the application? Was there a site plan showing the property? Were any building or other development issued after the CUP? It may require a new hearing for an expanded CUP. It may just require a clarification of the involved property. Of course chat with your attorney...when you have enough information.

A taking? Not if from all the evidence the permit was clearly meant to be the one parcel and not the entire zoning lot. A court only deals with the facts: not what the board meant or thought. BTW, do your best to keep it out of court. We all from time to time have to deal with previous "mistakes". I try to ignore them and let staff know how critical are the details.

I wonder: is there a statute of limitations on zoning mistakes?

[SW MI Planner]

I would go back to the body that issued the permit for clarification. Do the minutes of the hearing reflect that the multi-parcel zoning lot was being considered? How was the pubic notice disseminated? Were some property owners not notified if the entire property was properly identified? How was the property identified on the application? Was there a site plan showing the property? Were any building or other development issued after the CUP? It may require a new hearing for an expanded CUP. It may just require a clarification of the involved property. Of course chat with your attorney...when you have enough information.

Agreed - first you need to make sure that the special use permit was truly only for one parcel as reflected in the record (what was indicated on the application for CUP and/or the site plan, how was it published/noticed, what was discussed at the meetings, etc. If the record shows it was only for the one parcel, than I would think due process would involve them applying for an amended CUP that includes the entire parcel. If they choose to not do that, than revokation would be the next step.

[AG74683]

After reviewing the past documentation....it indeed looks like it was for a single parcel, not the full 3 it should have been. There is a site plan, and it also shows as a single parcel, no more.

I cannot find a copy of the advertisement as of now (its there, just hidden with some cryptic title). I did find copies of the adjacent property owner letters, and they only include the folks adjacent to the single property, no more. All evidence points to this CUP being active on a single parcel, NOT 3 as it should have been.

SO, am I legally obligated at this point to confine activity to the single parcel? I know the individual complaining has a lawyer involved. I also know that if I confine any activity, the new property owner will also involve his own lawyer and run to his commissioner buddies.

When I first got here, I was in the process of amending this CUP to fix these mistakes, but every time it would go to a public hearing, it would get stalled. I know what the individual complaining is after. She wants the CUP gone so the new owner loses any value on the property. She expects him to sell it if he can't get the right to continue activity there, and shes going to snatch it up, slap a conservation easement on it, and stall any further development in the area.

[SW MI Planner]

SO, am I legally obligated at this point to confine activity to the single parcel?

No, the property owner is legally obligated to confine the activity to the single parcel. But yes, you are obligated to try and get the property owner into conformance. The property owner has a choice in the manner on how to come into compliance, either reduce it to the single parcel or apply for an amended CUP. Make it clear that the original application and site plan was for ONE parcel and they are now in violation. (This sounds like it wasn't necessarily an error by staff, but a property owner that applied for one thing and continued to do what they wanted). In order to continue the use on the other two parcels they will be required to amend their CUP to include all parcels. Their alternative it to eliminate the use of the other two parcels and limit it to the one listed on their application. If they don't do either by (insert date) you will proceed with enforcement action.

[mike gurnee]

(This sounds like it wasn't necessarily an error by staff, but a property owner that applied for one thing and continued to do what they wanted)..

I am thinking the same.

[Midori]

Obviously not if the permit is clearly being violated, but this is an interesting situation.

Due to administrative error (previous planner), the permit only considers a single parcel, when in fact activity was occurring on at least two others. The permit occurred after the business was created.

A new owner recently purchased the land, with the understanding that the permit runs with the land. A neighbor is actively fighting the previous CUP now, she believes it to be invalid on two of the three parcels he purchased.

I believe that revoking the permit will substantially diminish the new owners property value, as he purchased the property with the intent to operate a business based in the previous permit.

Is there any precedent to this? Any cases I can reference to get the complainant to understand the situation?

It's not a taking, pretty sure. Start with the Wikipedia entry on "Regulatory takings." It's a good overview.

[AG74683]

It was definitely a staff error. The CUP was created after the activity began, it was initiated for compliance purposes. The three parcels comprising the grounds the business operates on have always been utilized as such. The business did not outgrow the original permit, rather the original permit never encompassed the entire business to begin with.

Hell, the previous planner only required the property owner to rezone 1 of the 3 parcels (I have at least fixed that thus far...). The new owner purchased the property in question with the belief that he could continue the business as it has been operating for 3 years now. I was attempting to clarify the permit, but it got pushed back when the new guy bought it.

[dw914er]

Did the application delineate the three parcels? It seems like that if the CUP needed to be amended, it would likely get approved, right?

[AG74683]

Did the application delineate the three parcels? It seems like that if the CUP needed to be amended, it would likely get approved, right?

No, it did not, only the one.

Yeah it would, BUT when the property switched hands the new owner asked for some added uses which changed the amendment entirely.

[gtpeach]

The regulation/ordinance takes precedence over any sort of action made by a staff member. In this case, the use of the two parcels that were not included in the CUP constitutes a zoning violation. The mistake by staff in not following the correct procedure does not override the requirement that the procedures be followed. The property owner needs to reapply for the CUP to cover all three parcels.

It seems as though pointing out that it was not done correctly due to the staff oversight would be a compelling argument for why the amended CUP should be approved, and you may want to find a way to diplomatically mention that in the staff report, and since it was a staff error you could consider whether it's appropriate to waive the applications fee in this situation as a sign of good will. But if the correct procedures were not followed, and there's an adjacent property owner that's unhappy with the current use, it's better not to leave the situation uncorrected.

[dw914er]

No, it did not, only the one.

Yeah it would, BUT when the property switched hands the new owner asked for some added uses which changed the amendment entirely.

Oh, okay. Sounds like the new owner would need to update the entitlement regardless, so you can just plug in the two remaining parcels as a part of it. It seems like you have a strong enough case that the application and approval were only for one parcel, even if the original applicant intended for it to be all the parcels. The applicant's oversight when filling out the application also contributed to this issue...

I am curious, how is the business and property set up? Is it one building on three separate parcels? Or are there several different buildings on these three parcels, but connected to one business entity and use. Could the subject property be considered as a unified center, or anything similar, which would explain why the error potentially occurred?

[AG74683]

Oh, okay. Sounds like the new owner would need to update the entitlement regardless, so you can just plug in the two remaining parcels as a part of it. It seems like you have a strong enough case that the application and approval were only for one parcel, even if the original applicant intended for it to be all the parcels. The applicant's oversight when filling out the application also contributed to this issue...

I am curious, how is the business and property set up? Is it one building on three separate parcels? Or are there several different buildings on these three parcels, but connected to one business entity and use. Could the subject property be considered as a unified center, or anything similar, which would explain why the error potentially occurred?

Actually its an ATV/Mud Racing facility, so its already a contentious issue. The race track comprises 95 percent of one parcel, and has a tiny bit on another. The one the CUP was for contained stables and R/V camp ground facilities. The stables and R/V facilities burned down about 10 months ago.

The permit was written for the business. Could the fact that the permit was awarded to the business, and all activities it comprises, be enough to contend that regardless of the PIN in the permit, it was for them all? The complainant moved in well after the business was up and running, she is just hunting for a reason to shut it down.

[Cardinal]

1. The previous owner, not city staff, made the error in applying for a CUP on only one of three parcels. Do not make the city at fault for what is ultimately the property owner's application.
2. City staff have been amiss in not enforcing the zoning regulation on the remaining two parcels. The fact that the zoning has not been enforced does not make the use legal.
3. The new buyer should have documented zoning on each parcel before purchasing. What he "thought" is irrelevant. The zoning on two parcels does not allow the use.
4. As already mentioned, there are two options. Apply for a CUP on the two other parcels or discontinue the use.

[SW MI Planner]

The permit was written for the business. Could the fact that the permit was awarded to the business, and all activities it comprises, be enough to contend that regardless of the PIN in the permit, it was for them all? The complainant moved in well after the business was up and running, she is just hunting for a reason to shut it down.

No, it's not enough. The intent of the business owner (previous or current), nor that of the complainant matters. Bottom line is that the application was for a specific activity for a specific piece of property. It's now expanded onto adjacent parcels and the use has expanded as well.

1. The previous owner, not city staff, made the error in applying for a CUP on only one of three parcels. Do not make the city at fault for what is ultimately the property owner's application.
2. City staff have been amiss in not enforcing the zoning regulation on the remaining two parcels. The fact that the zoning has not been enforced does not make the use legal.
3. The new buyer should have documented zoning on each parcel before purchasing. What he "thought" is irrelevant. The zoning on two parcels does not allow the use.
4. As already mentioned, there are two options. Apply for a CUP on the two other parcels or discontinue the use.

Absolutely agreed.

[AG74683]

I guess I should have clarified...this CUP was a staff initiated action for compliance issues. It also mentions this in the PB minutes, and the BOC Staff report.

[SW MI Planner]

I guess I should have clarified...this CUP was a staff initiated action for compliance issues. It also mentions this in the PB minutes, and the BOC Staff report.

I understand, but it's still the property owners responsibility to make sure they are in compliance with the law. There is case law out there that says that a property owner still needs to come into compliance, even if the violation has existed a number of years and I think even if the city knew about the vioilation. Failure to enforce doesn't allow the continutation of a violation.

Even if staff did initiate it, the property owner still has some burden of responsiblity for making sure the application met the use of the property. Regardless of the situation, the property is still in violation of the zoning and CUP approved and needs to come into compliance, either by adhering to CUP or applying for an amendment.

Also, it sounds like the complainant is trying to stir the pot, but at the end of the day, you have a property in violation that needs to be addressed. We get calls all the time from bitter neighbors, ex-spouses, etc. and while we don't want to get in the middle of a pissing match, my direction to my staff is that if it's a violation, it's a violation we need to address regardless of who initiated it.

[Marmoset]

Why not have the owner consolidate the property?

[michaelskis]

Sounds a bit like a bait and switch. I agree with Cardinal's statements. Has the City looked into getting a legal opinion in the event that the Planning Commission does not approve this and it goes all the way to court?

Personally I always look at three things, the exact parameters of the application, the actual motion and/or resolution from the board or commission, and the end use and activity. The three must match up.

[Cardinal]

Why not have the owner consolidate the property?

Consolidation would still require rezoning. The conditional use is not automatically expanded by consolidating the parcels.