Township zoning ordinance does not (necessarily) conflict with state law granting veteran right to operate mobile hot dog stand

by Gary Taylor

Padecky v. Muskegon Charter Township

Michigan Court of Appeals, September 8, 2022

Padecky is an honorably discharged military veteran.  He holds a license to sell goods pursuant to Michigan law, MCL 35.441, which provides that “[a] veteran may sell his or her own goods within this state if the proceeds from the sale of the goods are to be used for his or her direct personal benefit or gain.”  He obtained permission from a grocery store located in a C-1 – Commercial district to operate his hot dog stand in the store’s parking lot.  The Township contended that mobile food businesses were only permitted in M-1 zoning districts, and then only then by way of a special use permit.  Padecky did not dispute the fact that the C-1 zoning district does not support mobile food stands.  Instead he argued that requiring him to obtain a special use permit which would still limit him to the M-1 district violated MCL 35.441.

Relying on a case it decided in 2000, and a subsequent Michigan Attorney General’s opinion, the Michigan Court of Appeals determined that MCL 35.441 should be read to permit Townships to comply with regulations addressing the place and manner in which veterans sell goods, but may not require them to obtain permits or otherwise pay for the privilege of selling goods.  The court therefore determined that the outcome of this case turned on “how the Township’s ordinance is construed.” It first noted that the Townships zoning ordinance requires an applicant for a special use permit to have “fee title or equitable interest in the subject property.”  Padecky observed that it would be a burden for him to have a landowner seek a special use permit on his behalf.  The Court agreed, but held that permission from a landowner would be sufficient “equitable interest” in the property to allow Padecky to apply for the permit himself, and that the Township could not charge Padecky a fee for seeking the permit. “The Township may use the special use permit process for the limited purpose of ensuring that plaintiff carries on his sale of goods in an appropriate location and manner, but no more.”  From the record reviewed by the court it was unclear whether any land in the Township was zoned M-1.  The court therefore remanded the case back to the trial court for further fact finding on whether M-zoned land existed.  In doing so the court stated that “it is the Township’s obligation to ensure the existence of some property that might be appropriate for a mobile food stand – if necessary by sua sponte rezoning some other zoned property [to M-1].”

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