Failure to act on a use variance; Comparing Norman Corp v City of E Tawas; Whether a use variance is a vested property right; Nonconforming use; Relief from judgment; MCR 2.612(C)(1)(d) & (e); Moot issues as to a motion for civil contempt for failure to obey a court order; MCL 600.1701(g); MCL 600.5801(4); Zoning Board of Appeals (ZBA)

Holding that a zoning use variance is a vested property right only if the variance is acted upon by the applicant, the court reversed the trial court’s order and remanded. Defendant-ZBA denied plaintiff’s application for variances on his property. After remand by the trial court, the ZBA “moved to ‘grant the minimum variances necessary to accommodate a commercial building not to exceed 3,352 square feet total.’” Plaintiff never obtained a building permit, and construction never started. Five years later, the Township Board adopted an ordinance providing that “the ZBA was no longer authorized ‘to grant use variances.’” Plaintiff sought to have the court ordered variances granted because the prior variances granted by the ZBA were ineffective under the new ordinance. The trial court found that plaintiff possessed “a vested right in the use variances previously granted” and remanded to the ZBA. On appeal, the court agreed with the ZBA that the trial court erred by denying its motion for relief from judgment as it fulfilled the requirements of the trial court’s earlier order by granting the variances, that “those variances expired and became null and void” through no fault of the ZBA, and that it no longer had legal authority to grant plaintiff the requested use variances. “The ZBA carried out the trial court’s mandate by granting to plaintiff the requested variances . . . , and no further action was required to comply with the order.” In addition, “plaintiff had one year from the time his zoning use variance was granted to obtain a building permit, and the variance did not take effect, i.e. it did not vest, until a building permit was issued.” As in Norman, “because plaintiff never acted upon the variances granted to him” in 2012, he never acquired a vested property right. “Under the plain language of the applicable zoning ordinance, the approval of the variances expired and became null and void, and plaintiff never timely requested the ZBA to extend the time period to secure a building permit. It is undisputed the variances became ineffective as a result.” The court concluded it was “bound to apply the zoning ordinance as amended,” and the ZBA cannot reissue the variances. Finally, the court found moot the ZBA’s contention that the trial court erred by granting plaintiff’s motion for civil contempt, noting the trial court did not explicitly hold the ZBA in contempt.