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STATE OF MICHIGAN
COURT OF APPEALS


CITY OF ESSEXVILLE, Plaintiff-Appellant, v CARROLLTON CONCRETE MIX, INC., a/k/a CARROLLTON CONCRETE MIX, a/k/a CARROLLTON PAVING COMPANY, a/k/a CARROLLTON CONCRETE MIX COMPANY, Defendant-Appellee.

UNPUBLISHED March 29, 2007

No. 263757 Bay Circuit Court LC No. 00-003732-AZ

Before: Fort Hood, P.J., and White and Borrello, JJ. PER CURIAM. In this zoning dispute, plaintiff appeals as of right an order denying its motion for a new trial. This dispute has been the subject of a prior appeal to this Court, Essexville v Carrollton Concrete Mix, Inc, 259 Mich App 257; 673 NW2d 815 (2003). Following an amendment to plaintiff's zoning ordinance, Carrollton enjoys a nonconforming use on its riverfront property.1 On remand, the trial court determined the scope of that nonconforming use. We affirm. Plaintiff argues that the court erred in considering Carrollton's historical use of the property when determining the scope of the nonconforming use. We disagree. Plaintiff presented this argument to the court below through a motion for a new trial. We review a denial of a new trial motion for an abuse of discretion. Allard v State Farm Ins Co, 271 Mich App 394, 406; 722 NW2d 268 (2006).2

1

The relevant specific history of this dispute is set forth in our prior opinion. Essexville, supra at 259-265.

A trial court's legal ruling regarding a zoning ordinance is reviewed de novo, but the trial court's factual findings are given considerable deference and generally will not be disturbed on appeal. Jott, Inc v Clinton Charter Twp, 224 Mich App 513, 525-526; 569 NW2d 841 (1997). On appeal, plaintiff challenges the trial court's application of the law and does not take issue with the trial court's factual findings.

2

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Zoning regulation is designed to achieve the orderly development and use of land to promote the general welfare. See MCL 125.3201. Such regulation, however, is "subject to vested property interests acquired before" it becomes effective. Lansing v Dawley, 247 Mich 394, 396; 225 NW 500 (1929). "A prior nonconforming use is a vested right in the use of particular property that does not conform to zoning restrictions, but is protected because it lawfully existed before the zoning regulation's effective date." Heath Twp v Sall, 442 Mich 434, 439; 502 NW2d 627 (1993). Though "one of the goals of local zoning is the gradual elimination of nonconforming uses," Century Cellunet of Southern Michigan Ltd Partnership v Summit Twp, 250 Mich App 543, 546; 655 NW2d 245 (2002), the Legislature has provided statutory protection of nonconforming uses, Kopietz v Clarkston Zoning Bd of Appeals, 211 Mich App 666, 675; 535 NW2d 910 (1995). In effect during the circumstances of this dispute, MCL 125.583a(1)3 provided that [t]he lawful use of land or a structure exactly as the land or structure existed at the time of the enactment of the ordinance affecting that land or structure, may be continued, except as otherwise provided in this act, although that use or structure does not conform with the ordinance. Under this provision, a valid zoning ordinance may preclude the "enlargement, expansion, or extension of nonconforming uses but also provide for the diminution of nonconforming uses without requiring cessation. In so doing, the proper balance is struck between the municipality's interest in gradually eliminating nonconforming uses and the property owner's constitutionally protected rights in the use of his property." Kopietz, supra at 675. Plaintiff has regulated nonconforming uses pursuant to this authority.4 "[It] 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." Norton Shores v Carr, 81 Mich App 715, 720; 265 NW2d 802

3

The City and Village Zoning Act (CVZA), MCL 125.581 et seq., was repealed on July 1, 2006 by the Michigan Zoning Enabling Act, MCL 125.3101 et seq. 2006 PA 110,

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Michigan Law