Tuesday, August 29, 2017 at 7:19PM
Clark Hill

To the extent that an ordinance in ambiguous, it must be interpreted in favor of the property owner.

I recently overturned an adverse decision against a client by the Webster Township Zoning Board of Appeals.  In that case, the ZBA interpreted an undefined term in a zoning ordinance in a way that forced the property owner to stop a use that had been implemented for several years.  The Washtenaw County Circuit Court overturned that decision, relying in part upon cases requiring that the ambiguity in the Ordinance be interpreted in favor of the property owner.

Two Michigan Court of Appeals cases support this determination.

Per Talcott v Midland, 150 Mich App 143, 146-7; 387 NW2d 845 (1985),  “[w]hen interpreting the language of an ordinance to determine the extent of a restriction upon the use of property, the language must be interpreted, where doubt exists regarding legislative intent, in favor of the property owner.”  Id., at 147.  In Talcott, the Court of Appeals reversed Midland’s Zoning Board of Appeals and the trial court by “hold[ing] that carry-out pizzeria is a permissible use in” the applicable zoning district where it was questionable which of multiple definitions should be applied.  The ambiguity required applying the definition favorable to the owner.  

Talcott relied upon Peacock Twp v Panetta, 81 Mich App 733, 736-737, 265 NW2d 810 (1978), which involved an undefined ordinance term.  In Peacock, “any recognized ‘mercantile business’ [wa]s allowed in the commercial-residential districts. The ordinance fail[ed] to define the term ‘mercantile business’, hence, it [wa]s unclear as to what types of uses the drafters of the ordinance intended to permit.”  Id, at 736.  Therefore, the Court of Appeals interpreted that ordinance in favor of the property owner and determined it “should be construed to allow Defendant to use their property” as requested.  Id, at 737.

Interpreting ambiguities against a city or township is logical and fair.  The agency had the exclusive opportunity to enact a clear ordinance.  Further, an agency should not be able to capriciously shift the meaning of its ordinance to address the issue of the moment.

Obviously, this cannot be taken to ridiculous extremes.  For example, if a provision in a single family residential district is ambiguous, it does not mean that the property owner can install a strip mall.  In a situation like that, the “legislative intent” as referenced in those cases would almost certainly demonstrate that a strip mall should not be in a single family residential district.  But a reasonable interpretation of an ambiguous zoning ordinance presented by a property owner should be implemented.

Please feel free to contact me about any municipal issues that you are experiencing.

Article originally appeared on Clark Hill Property Owner Condemnation Services (
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