Agenda - Planning Commission - 12/07/2006

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Page 4 - November 10, 2006 Z.B. In 1998, Holly sold the property to Fox on a land contract. Fox rented the property until November 2003. Unable to make payments, Fox forfeited the property back to Holly in 2004. The property remained vacant. Later that year, the city posted a notice on the property preventing anyone from occupying or repairing it pursuant to a zoning ordinance that regulated nonconforming uses. The ordinance ended a nonconforming use if it was discontinued for six consecutive months or for a period of 18 months during any three-year period. Holly applied for a variance that would allowhim to resume the noncon- forming use of the property. The variance was granted conditionally, but it was later revoked when Holly failed to post the required bond and it was discovered that the applicable zoning code provisions were not met. In a letter to the zoning board about the matter, the board's commissioner " stated that Holly might have lied about the length of time that the property was vacant to obtain the variance. Holly did not appeal the denial of the variance, but, instead, he sued the city for due process violations and the commissioner for libel. The commissioner and the city asked for judgment without a trial. DECISION: Request granted in part. Under governmental immunity, the commissioner was immune from a claim of libel. Holly did not offer any evidence that the commissioner was not acting within the scope of his authority when he informed the board that Holly had potentially lied about the status of the residence. The libel charge was dis- missed. With regard to the due process claim, however, the court found in Holly's favor. Although Michigan law authorized cities to enact ordinances that termi- nated abandoned nonconforming uses, the ordinance had to contain a proce- dure to guarantee due process where an individual's property interest would be adversely affected by the termination. The city argued that it afforded Holly due process through the variance procedure, but that procedure did not satisfy constitutional due process requirements; it did not provide Holly an opportu- nity to object the deprivation of his property interest. '.-'. ," ~ '" 1 , I / Variance - Board grants property owner variance to build home in excess of height ordinance Neighbor argues board did not consider community impact of such construction Citation: Margaritis v. Board of Appeals of the Incorporated Village of Flower Hill, Supreme Court of New York, Appellate Division, 2nd Department, No. 04-010134 (2006) NEW YORK. (09/12/06) - Han was the owner of a large parcel of undeveloped _) @ 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 68