Zoning decisions travel with the land and are not temporary
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EmailWhy permits, variances, and other zoning administrative decisions typically remain in effect and transfer to future property owners.
There are two basic principles of zoning that are frequently misunderstood: Zoning administrative decisions are permanent, not temporary; and the zoning decision is attached to the parcel of land, not just for the person who sought the approval. Both points remain a constant source of questions sent to Michigan State University Extension educators who specialize in land use, planning and zoning issues.
Zoning administrative decisions are permanent
Generally, zoning administrative decisions are permanent, with few exceptions. Zoning administrative decisions include issuing a zoning or land use permit, a special use permit, variance, a planned unit development handled like a special use permit, and site plan review. These zoning decisions are generally seen as granting a limited set of property rights.
There is some nuance around when the property rights granted by an administrative zoning decision become what are known as vested rights. Generally, vested rights exist once a permit has been issued and there has been construction work of a substantial character that has changed the land (See Dingeman Advertising, Inc. v. Algoma Township, 393 Mich. 89). Communities should work with their attorney on issues of vested rights.
A zoning decision is supposed to be approved, or denied, based on its impacts on the land and zoning ordinance standards. If it meets those standards, then it should always be approved. If it did not work this way, then many may choose not to build, open a business, or take other actions because the risk of that approval might be dependent on the person in office, the day, or some other arbitrary measure. Such a lack of due process creates problems with one's constitutionally protected private property rights.
The long-standing rule of law is that zoning administrative decisions are permanent. An applicant has the right to expect the local government decision is a firm commitment.
Exceptions to this principle do exist. One example is when the administrative decision covers mining, a finite resource. In those cases, the mining operation is complete when the mineral or aggregate is gone, meaning the mining permits can go away when the resource is spent.
Another is that a zoning approval typically expires if not acted upon (e.g., no substantial construction after 1 year). A third example is when the nature of the permit itself is temporary, such as a camper permit, where use is limited to an ordinance standard such as 90 or 120 days. For more on this see the MSU Extension article, “Zoning runs with the land, except when it doesn’t.”
Zoning permits travel with the land
The second commonly misunderstood principle is that zoning permits are attached to and travel with the land, not the person or property owner who applied for the permit.
Zoning permits regulate the use of land. Zoning administrative decisions cannot be restricted to a person, as they are restricted to the land in question. This focus on land is found in the purpose of the Michigan Zoning Enabling Act, that states: “An act to codify the laws regarding local units of government regulating the development and use of land…” (MCL 125.3101 et seq.).
A zoning decision is supposed to be approved or denied based on ordinance standards, which are designed to minimize impact on the land and surrounding areas. If an application meets the standards in an ordinance, approval must be granted. If it is okay to be approved for that location and a particular parcel, then it should be ok no matter who owns the land. When property is sold, the zoning approvals, permits, variances and nonconformities also go to the new owner. The new owner can then continue the approved land use.
The long-standing rule of law is that zoning approvals stay with the land. An applicant should have the right to expect those approvals to be a part of the property that can be bought and sold to others.
If it did not work this way and the permits could not be transferred to a new owner, then many may choose not to build, open a business, or take other action because of the risk of losing the property value and property rights.