Legal non-conforming use still subject to junk and nuisance ordinances

by Victoria Heldt

Soo Township v. Lorenzo Pezzolesi
(Michigan Court of Appeals, October 25, 2011)

Lorenzo Pezzolesi purchased a piece of property in Soo Township in 1987 when the property was zoned commercial.  He began using it as a junk/salvage yard soon after that.  In 2001, the property was zoned residential and Soo Township passed a nuisance ordinance and a junkyard ordinance.

Subsequently, the Township filed a complaint against Pezzolessi claiming that he was in violation of the ordinances, that the property wasn’t zoned to be a junkyard, and that he did not have a license to operate a junkyard.  The Township’s Supervisor testified that the junkyard did not even classify as “commercial” since no commercial signs were up, the entrance was blocked on a regular basis, and no evidence of commercial activity existed.  Pezzolesi argued that his operation was a salvage yard, not a junkyard.  He claimed to have made sales two weeks prior to the trial and, when asked about employees, he responded that he called “Peter, Joe, and Bob” on the weekends when they were free.  He was unable to provide the last names of his helpers.  The trial court ruled in favor of Pezzolesi.  It found that his salvage yard constituted a commercial operation on property that was zoned commercial at the time of purchase.  The property was rezoned residential after the establishment of the salvage yard; therefore the salvage yard was a legal nonconforming use not subject to the license requirement in the zoning ordinance.  The trial court also found that Pezzolesi was not subject to the nuisance ordinance for the same reason.

The Township appealed, first arguing that the defendant abandoned his right to a nonconforming use when he ceased operating a “commercial” business.  The Court denied this argument, noting that the act of abandonment required “an act or omission on the part of the owner or holder which clearly manifests his voluntary decision to abandon.”  The Court found no such action.  Next, the Township argued that the Pezzolesi’s property was subject to the nuisance ordinance and the junkyard ordinance.  On this issue, the Court agreed.  It distinguished between a zoning ordinance and a regulatory ordinance in that “zoning ordinances regulate land uses, while regulatory ordinances regulate activities.”  It cited a previous case in which it ruled that “a regulatory ordinance can be imposed on a prior nonconforming user, but a zoning ordinance cannot.”  It found that in this case, the junkyard ordinance and the nuisance ordinance constituted regulatory ordinances since they governed people’s behavior regarding the operation of junkyards.  Similarly, the nuisance ordinance “address activity or conditions that could apply to any property, regardless of its location.”  Therefore, the ordinances applied to Pezzolesi’s junkyard/salvage operation.

The Court remanded the decision to the lower court to take further evidence and hear arguments on whether Pezzolesi’s operation in fact violated either of the regulatory ordinances.

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