MI Appeals Court Finds That a Municipality Has an Obligation to Ensure Property Exists That Is Suitable for a Mobile Food Stand

This post was authored by Julia Buli, JD Candidate, Touro University Jacob D. Fuchsberg Law Center.

Pursuant to Michigan Law (MCL) 35,441(1), veterans may hold a license to sell goods. It states, “[a] veteran may sell his or her own goods within this state if the proceeds from the sale of the goods are to be used for his or her direct personal benefit or gain.” The Plainiff at hand is an honorably discharged veteran, who acquired the necessary license required by statute. After obtaining permission from a grocery store, the Plaintiff began to operate a hot dog stand in the store’s parking lot, located within the Township. The Township prohibit Plaintiff from operating the food stand due to the grocery store being in a C-1 Commercial district, but mobile food businesses were only allowed by a special use permit in M-1 zoning districts.

The Township’s zoning ordinance lays out a list of permitted uses and a hot dog stand is not listed under either. However, the M district allows for special uses which includes, “[a]ny use permitted in the I, C-1 or C-2 district [and] [a]ny other use deemed by the township board to be physically, environmentally and socially compatible with the surrounding area and consistent with the purpose of this district.” The application for a special use permit requires a filing by “[a]ny person owning fee title or equitable interest in the subject property” and a nonrefundable fee.

The Plainiff did not dispute the Township’s power to enforce zoning ordinances. Instead, Plaintiff argued that requiring a special use permit, which is only limited to M-1 zoning districts, effectively barred him from operating his stand and thus violating MCL 35.441(1). The trial court held that the Township did not violate MCL 35,441 and could effectively regulate where Plaintiff conducted his operations. plaintiff appealed.

The Court of Appeals relied on both a prior case and the Michigan Attorney General’s opinion to conclude that MCL 35.441 allows the municipality to regulate the place and the manner that veterans could sell goods, but it could not require veterans to “pay for the privilege of selling such goods.” The Court held that the zoning ordinance itself does not conflict with MCL 35.441 solely because it restricts mobile food stands to a single zoning district. The issue at hand is how the Township’s ordinance is construed. Following that reasoning, if M zoned property is not available that is suitable for Plaintiff’s mobile food stand, then the ordinance would be in conflict with MCL 35.441.

On that issue, Plaintiff first argued that the ordinance plainly states the applicant must have a “fee title or equitable interest in the subject property,” and as such, imposes a high burden on him to find a landowner to request a special use permit on his behalf. The Court agreed and held that permission from a landowner would be sufficient “equitable interest” for the plaintiff to apply for a permit. Secondly, the Court also held that the Township could not charge the application fee since the special use permit process is for the “limited purpose of ensuring that [P]othertiff carries on his sale of goods in an appropriate location and manner, but no more.”

The Court ruled that while it is not the Township’s obligation to ensure that Plaintiff has permission from a landowner, it is the Township’s obligation to ensure property exists that is suitable for a mobile food stand and “if necessary, by Spontaneous rezoning some other zoned property.” The case was ultimately remanded for further factual findings on whether any land in the Township is zoned in the M district since it was unclear from the record.

Padcky v. Muskegon Charter Township, 2022 WL 4112075 (Mich. App. 9/8/2022)

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