Agenda - Planning Commission - 06/07/2007

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Zoning Bulletin Taking-Developer claims rezoning amounts to taking Township argues rezoning necessary to master plan Citation: Dorman v. Township of Clinton, - N. W,2d ~, 2006 WL 3457636 (Mich. 2006) MICHIGAN (12/01/06) - Dorman purchased property in the township of Clin- ton in 2001. He intended to develop the existing building on the property, which was in a light industrial zone, as a storage facility. Dorman submitted a site plan to the planning department and began making minor alterations to the building. While Dorman was srill in the planning stages, the township rezoned the prop- erty to residential. This was done to conform the zoning ordinance to the town- ship's master plan. Dorman sued the township, claiming that the change decreased his anticipated return on the property and amounted to a regulatory taking. A taking occurred when the goveri:unent-here, the township--limited a prop- erty owner's ability to use or develop his or her land witham offering due process and/or reasonable compensation. A taking did not have to include the actual sei- zure of land; it could occur if the government's actions severely limited or prevent- ed a property owner from using his or her property for its best reasonable use. Decision: Judgment in favor of the township. To succeed on a taking claim, Dorman had to have a vested interest that was disturbed by the zoning reclassification. Here, that meant that he had to have se- cured a building permit for the necessary construction and expended a "substan- tial investment in performing that construction." Dorman had done neither; he could not claim a regulatory taking. In addition, Dorman had not exhausted his admiDistrative remedies. He could 'have sought a special use permit, a variance, or to have his property rezoned llii- der the new ordinance. Since he had not taken any of these actions, he could not pursue his claim. One judge, though agreeing that Dorman could not pursue his claim, stated that the state should reconsider the standard that mandated a property owner to have made a "substantial investment" to have his or her rights considered vested. That judge wrote: "A rule that leaves a property owner's ability to build uncertain or tentative Ul1ti1late in an extended building process [could] act as a deterrent to the exercise of property rights, because ~i ,OVvTIer could be forced to expend considerable sums of money absent any assurance that the local zoning authority [would] not alter existing zoning at the last minute." The judge stated that the =rent law raised due process concerns, and the state supreme court should think about alternative standards of review for determining when a property owner's rights were vested. see also: Bevan v.Brandon Twp., 475 N.W2d 37 (Mich. 1991). see also: Paragon Propel-ties Co. v. City of Novi, 550 N. W,2d 772 (Mich. 1996). Editorial QueStions or Comments: west.quinlari@thoms()n.~()m' 8 152