Legal Question in Real Estate Law in Michigan

I own a one acre parcel of which 192 feet are waterfront on a channel. The Planning Commission has recommended the setback formula be changed for waterfront property, using adjacent properties to calculate the average setback as opposed to the previous 200 ft requirement. The change will result in me losing 4100+ sq ft of building area. They have also inserted language into the existing ordinance which would protect private water views, and that any structure built must meet the requirement that would protect my neighbors' views. When I put this property on the market one year ago, my neighbor approached me to sign a deed restriction protecting his view. I did not feel this was in my best interest as the owner, that the setback rules in place would protect him, to a point, but he wants more of a view than that. Does this change and its affect on my setback constitute a "taking" by the PC?


Asked on 11/21/10, 12:05 pm

1 Answer from Attorneys
Shelly Schellenberg MI & FL private practice

If the new ordinance makes your property unbuildable, yes. If you can still build, but must cut the construction way back in size, then you will not be able to prove a taking. Local governments have ways of really diminishing a property's value, and they do this with impunity, because the laws all favor the government's right to change and then enforce zoning and size/set back requirements under its police power, and it only has to show a rational basis for the change. This is very easy for the government to do, so property owners lose money.

Your neighbor is like most neighbors. He wants to control your use of your property to his advantage, but he doesn't want to pay for that opportunity.

This change substantially affects your property value. Get a "before and after" appraisal, appeal your taxes in March to the Board of Review, (you will lose). Appeal them again to the Tax Tribunal (you will probably lose), and appeal them again to the Court of Appeals. Hire an attorney before you go to the Board of Review.

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Answered on 11/26/10, 2:51 pm


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