            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



SUSAN REAUME,                                                       FOR PUBLICATION
                                                                    May 21, 2019
               Plaintiff-Appellant,                                 9:05 a.m.

v                                                                   No. 341654
                                                                    Ottawa Circuit Court
TOWNSHIP OF SPRING LAKE,                                            LC No. 17-004964-AA

               Defendant-Appellee.


Before: GLEICHER, P.J., and RONAYNE KRAUSE and O’BRIEN, JJ.

RONAYNE KRAUSE, J.

        Plaintiff, Susan Reaume, appeals by leave granted1 the trial court’s order affirming the
denial by defendant, the Township of Spring Lake (the Township), of plaintiff’s application for a
short-term rental license. We affirm.

                                       I. BACKGROUND

         In 2003, plaintiff purchased a home (“the property”) located in the Township. The
property has at all relevant times been located within the “R-1 Low Density Residential” zoning
district. Plaintiff utilized the property as her full-time residence until 2014. In 2015, plaintiff
retained a property management company, and an agent of that company made a telephone
inquiry to the Township regarding restrictions on short term rentals for the property. According
to the agent, a person named Connie Meiste “said that Spring Lake Township had no restrictions
on short term or long term rentals.” Plaintiff made substantial improvements to the property, and
in 2015 and 2016, she rented it out seasonally as a short-term vacation rental. As will be
discussed further, plaintiff contends that Lukas Hill, the Township’s Zoning Administrator,2


1
  Reaume v Spring Lake, unpublished order of the Court of Appeals, entered June 4, 2018
(Docket No. 341654).
2
 Apparently, the Township uses the terms “zoning administrator” and “community development
director” interchangeably.



                                                -1-
“expressly affirmed [plaintiff’s] right to lawfully use [the property] as a short-term rental.”
Plaintiff’s neighbors, however, objected to the use of the property for short-term rentals and
lodged complaints with the Township.

         In December 2016, the Township adopted Ordinance No. 255, which prohibited short-
term rentals in the R-1 zone. However, the ordinance allowed long-term rentals of more than 28
days. The ordinance provided that all short-term rentals must be registered and licensed with the
community development director before rental activity could occur. The Township also adopted
Ordinance No. 257, which amended the Spring Lake Township Zoning Ordinance to allow
“short-term rentals” and “limited short-term rentals,” which had independent definitions, in
certain zoning districts. Ordinance No. 257 permitted “limited short-term rentals,” but not
“short-term rentals,” in R-1 zones. The amendment defined “limited short-term rentals” as “[t]he
rental of any Dwelling for any one or two rental periods of up to 14 days, not to exceed 14 days
total in a calendar year.”

        Plaintiff applied for a short-term rental license, which the Township denied. She
appealed that decision to the Township Zoning Board of Appeals (ZBA), which denied her
appeal. Plaintiff then appealed that decision in the trial court. Following a hearing, the trial
court affirmed the Township’s decision in a written opinion and order. Plaintiff sought leave to
appeal in this Court, which was granted.

                                  II. STANDARD OF REVIEW

        We review the interpretation of ordinances de novo. Soupal v Shady View, Inc, 469 Mich
458, 462; 672 NW2d 171 (2003). Ordinances are interpreted in the same manner as statutes; we
must apply clear and unambiguous language as written, and any rules of construction are applied
“in order to give effect to the legislative body’s intent.” Brandon Charter Twp v Tippett, 241
Mich App 417, 422; 616 NW2d 243 (2000). We also review de novo the application of legal and
equitable doctrines. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008); Sylvan Twp v
City of Chelsea, 313 Mich App 305, 315-316; 882 NW2d 545 (2015). It is well established that
courts will consider the substance of pleadings and look beyond the names or labels applied by
the parties. Hurtford v Holmes, 3 Mich 460, 463 (1855); Norris v Lincoln Park Police Officers,
292 Mich App 574, 582; 808 NW2d 578 (2011).

        “In general, we review de novo a circuit court’s decision in an appeal from a ZBA
decision.” Hughes v Almena, 284 Mich App 50, 60; 711 NW2d 453 (2009). However, there is
no single standard of review applicable to the appeal itself, because zoning cases typically entail
questions of both fact and law. Macenas v Village of Michiana, 433 Mich 380, 394-395; 446
NW2d 102 (1989). The courts must defer to a ZBA’s factual findings to the extent they are
“supported by competent, material, and substantial evidence on the record.” Id. at 395. We in
turn review the circuit court’s factual findings for, in effect, clear error to determine whether the
circuit court properly applied the substantial evidence test. Hughes, 284 Mich App at 60. The
ZBA’s decisions on the basis of its factual findings are also given deference “provided they are
procedurally proper … and are a reasonable exercise of the board’s discretion.” Macenas, 433
Mich at 395. The ZBA’s determinations of law are afforded no deference. Id. at 395-396.

                                         III. ESTOPPEL

                                                -2-
        We observe initially that much of plaintiff’s argument is, in substance and effect, an
equitable estoppel argument. Equitable estoppel may preclude the enforcement of a zoning
ordinance if a party reasonably relies to its prejudice on a representation made by the
municipality. Lyon Charter Twp v Petty, 317 Mich App 482, 490; 896 NW2d 477 (2016),
vacated in part on other grounds by 500 Mich 1010 (2017). Generally, plaintiff contends that
prior to the Township’s adoption of Ordinance Nos. 255 and 257, it had formally determined and
communicated that plaintiff’s use of the property for short-term rentals was lawful. Plaintiff
therefore concludes that her use of the property is necessarily “grandfathered,” and the Township
may not deny her permission to continue using her property for short-term rentals. Plaintiff
argues that she expended considerable sums of money on renovations and modifications to the
property in reliance upon the Township’s alleged assurances that short-term rentals were lawful
in the R-1 zoning district. However, plaintiff’s argument turns on making untenable
extrapolations from statements made by individuals who had no authority to bind the Township.

        “[A] historical failure to enforce a particular zoning ordinance, standing alone, is
insufficient to preclude enforcement in the present.” Lyon, 317 Mich App at 489. A
municipality may, in some cases, be estopped from enforcement “pursuant to the positive acts of
municipal officials which induced plaintiff to act in a certain manner, and where plaintiff relied
upon the official’s actions by incurring a change of position or making expenditures in reliance
upon the officials’ actions.” Parker v West Bloomfield Twp, 60 Mich App 583, 591; 231 NW2d
424 (1975); see also Lyon, 317 Mich App at 490. The general rule is against estopping
municipalities from enforcing zoning ordinances in the absence of “exceptional circumstances,”
which must be viewed as a whole, and “no factor is in itself decisive.” Pittsfield Twp v Malcolm,
375 Mich 135, 146-148; 134 NW2d 166 (1965). However, a municipality cannot be estopped by
unauthorized or illegal conduct by individual officers. Parker, 60 Mich App at 594-595; see also
Blackman Twp v Koller, 357 Mich 186, 189; 98 NW2d 538 (1959). “Casual private advice
offered by township officials does not constitute exceptional circumstances.” Howard Twp Bd of
Trustees v Waldo, 168 Mich App 565, 576; 425 NW2d 180 (1988), citing White Lake Twp v
Amos, 371 Mich 693, 698-699; 124 NW2d 803 (1963).

        Plaintiff’s only argument of serious concern pertains to the conversation her property
management company’s manager, Barbara Hass, had “with Connie Meiste at the Spring Lake
Township offices by telephone.” According to Hass’s affidavit, she was told “that Spring Lake
Township had no restrictions on short term or long term rentals.” It is reasonable to expect
municipal employees to provide accurate information upon request. However, this record does
not disclose enough detail about the conversation to draw any conclusions. For example, it
appears that the Township did not, in fact, have any formal regulations that specifically
addressed rentals of property. Nevertheless, that is not necessarily equivalent to a statement that
any kind of rental was explicitly authorized. We do not know precisely what question was
asked. It is unclear whether Hass’s affidavit repeats a direct quotation from Meiste’s answer, or
whether the affidavit sets forth Hass’s understanding of the gravamen of Meiste’s answer.
Importantly, the record provides no support for the proposition that Meiste had any authority to
bind the Township. Because plaintiff has the burden of proof, we are unimpressed with
plaintiff’s protestations to the effect that the Township has not disproved Meiste’s authority or
anything about the nature of her statement to Hass.



                                                -3-
         Plaintiff argues that the Township’s Zoning Administrator, Lukas Hill, explicitly
approved plaintiff’s revised rental listing after obtaining clarification that the property was not
being improperly held out as a multi-family dwelling. Again, there is nothing in the record to
show that Hill had any individual authority to bind the Township to a zoning determination.3
Furthermore, the record indicates that the Township’s enforcement protocol has historically been
to address violations as they are reported in the forms of complaints, rather than to affirmatively
look for violations. The record does not reflect whether the Township had received any
complaints at the time of the original rental listing alleging a violation of the R-1 zoning
requirements. Plaintiff extrapolates too much from Hill’s satisfaction that plaintiff’s revised
rental listing complied with the specific prohibition against multi-family dwellings in R-1 zones.
The fact that the revised listing did not contravene one restriction is not proof that it did not
contravene any restrictions. In any event, as noted, failure to enforce a zoning ordinance does
not constitute approval of an otherwise illegal use.

        Plaintiff also argues that Hill had “determined unequivocally that short-term rentals were
lawful under the Spring Lake Township Zoning Ordinance.” We have carefully reviewed the
documents plaintiff provided in support. One document is a printout of an emailed complaint
from one of plaintiff’s neighbors regarding plaintiff’s rentals, upon which an unidentified person
handwrote “Lukas says nothing we can do about it as yet.” No explanation has been provided as
to why Hill might have made such a statement, and we decline to speculate. Another document,
from the Township Supervisor, John Nash, conveyed some advice to neighbors about actions
they could take; it again contains no hint of a determination that plaintiff’s use of the property
was actually lawful. Neither document constitutes a formal determination by the Township, or
binding on the Township, that plaintiff’s use of the property for short-term rentals was actually
lawful. Indeed, neither document appears even to constitute a private opinion that plaintiff’s use
of the property was lawful. Plaintiff also relies on the fact that the Township had not cited any
other short-term rentals, which, again, is not an expression of approval.

       In summary, plaintiff mostly relies on seriously mischaracterizing statements made by
individuals. We conclude that there is no basis for estopping, formally or substantively, the
Township from enforcing its zoning or regulatory ordinances to preclude plaintiff from using the
property for short-term rentals.




3
  Plaintiff cites Gordon Sel-Way, Inc v Spence Bros, Inc, 177 Mich App 116, 124; 440 NW2d
907 (1989), rev’d in part on other grounds 438 Mich 488 (1991), for the proposition that Hill’s
“interpretation” should be imputed to the Township. Hill does not appear to have rendered an
“interpretation.” More importantly, the pertinent holding in Gordon Sel-Way was that knowledge
possessed by a corporation’s managerial employees may be imputed to the corporation, such that
the corporation may not willfully ignore any duties that might arise as a consequence of that
knowledge. Here, the Township does not claim ignorance of any of the statements made by its
employees and officers, but rather properly challenges their meaning and significance. Gordon
Sel-Way did not purport to contravene the case law we have discussed above limiting the
circumstances under which a municipality’s employees or officers could bind the municipality.


                                                -4-
                           IV. LAWFUL NONCONFORMING USE

       MCL 125.3208(1) provides that “[i]f the use of a dwelling, building, or structure or of the
land is lawful at the time of enactment of a zoning ordinance or an amendment to a zoning
ordinance, then that use may be continued although the use does not conform to the zoning
ordinance or amendment.” This is colloquially, often referred to as “grandfathering.” A similar
provision was included in Section 335 of the Spring Lake Township Zoning Ordinance, which
provides:

       Nonconforming Buildings, Structures, Lots, and uses which do not conform to
       one (1) or more of the provisions or requirements of this Ordinance or any
       subsequent amendments thereto, but which were lawfully established prior to the
       adoption of this Ordinance or subsequent amendment, may be continued.
       However, no such Building, Structure or use shall be enlarged or extended, and no
       nonconforming Lot created or made more nonconforming, except as provided
       herein. It is the intent of this Section to reduce or remove the number of
       nonconforming occurrences in the Township.

“A prior nonconforming use is a vested right in the use of particular property that does not
conform to zoning restrictions, but is protected because it lawfully existed before the zoning
regulation’s effective date.” Heath Twp v Sall, 442 Mich 434, 439; 502 NW2d 627 (1993).

       On appeal, plaintiff does not challenge whether Ordinance Nos. 255 and 257 were
properly adopted or prohibit short-term rentals in properties zoned R-1. As discussed, we find
no merit to plaintiff’s contention that the Township had itself determined plaintiff’s use of her
property for short-term rentals to be lawful. Nevertheless, if that use of the property actually was
lawful prior to the adoption of Ordinances 255 and 257, then plaintiff has a right to continue
using her property for short-term rentals. We conclude that it was not lawful prior to the
adoption of Ordinances 255 and 257.

       Plaintiff argues that her use of the property as a short-term rental was lawful pursuant to
the definition of the term “dwelling” in the Spring Lake Township Zoning Ordinance. We
disagree. The Spring Lake Township Zoning Ordinance defines “dwelling” under Section 205
as:

       Any Building or portion thereof which is occupied in whole or in part as a home,
       residence, or sleeping place, either permanently or temporarily, by one (1) or
       more Families, but not including Motels or tourist rooms. Subject to compliance
       with the requirements of Section 322, a Mobile Home shall be considered to be a
       Dwelling.

              (1) Dwelling, Single-Family: A Building designed for use and occupancy
       by one (1) Family only.

              (2) Dwelling, Two-Family: A Building designed for use and occupancy by
       two (2) Families only and having separate living, cooking and eating facilities for
       each Family.


                                                -5-
                (3) Dwelling, Multi-Family: A Building designed for use and occupancy
       by three (3) or more Families and having separate living, cooking and eating
       facilities for each Family.

The Ordinance does not define “tourist room,” but it defines “motel” under Section 214 as:

       A Building or group of Buildings on the same Lot, whether Detached or in
       connected rows, containing sleeping or Dwelling Units which may or may not be
       independently accessible from the outside with garage or Parking Space located
       on the Lot and designed for, or occupied by transient residents. The term shall
       include any Building or Building groups designated as a Hotel, motor lodge,
       transient cabins, cabanas, or by any other title intended to identify them as
       providing lodging, with or without meals, for compensation on a transient basis.

Finally, “family” is defined under Section 207 as:

       A single individual or individuals, domiciled together whose relationship is of a
       continuing, non-transient, domestic character and who are cooking and living
       together as a single, nonprofit housekeeping unit, but not including any society,
       club, fraternity, sorority, association, lodge, coterie, organization, or group of
       students, or other individuals whose relationship is of a transitory or seasonal
       nature, or for anticipated limited duration of school terms, or other similar
       determinable period of time.

We note that R-1, R-2, R-3, and R-4 zones all permit “Dwelling, Single-Family” use, but only in
R-4 zones are “Dwelling, Two-Family” and “Dwelling, Multiple-Family” uses permitted. The
described “intent” of R-4 zoning notes that such zoning “is dispersed throughout the Township to
avoid pockets of rental or transient housing.”

        Read as a whole, the definition of “Dwelling, Single-Family” unambiguously excludes
transient or temporary rental occupation. Plaintiff focuses on the word “temporarily” in the
overview definition of “Dwelling.” Plaintiff fails to note that although some kinds of dwellings
permit temporary occupancy, single-family dwellings do not. The definition of single-family
dwelling emphasizes one family only, and “family” expressly excludes “transitory or seasonal”
or otherwise temporary relationships. Notwithstanding the possibility of some temporary
occupancy, any kind of “dwelling” excludes a “motel.” “Motels” expressly provide transient
lodging, or “tourist rooms,” which are undefined but reasonably understood as also referring to
transient lodging. Plaintiff’s use of her property for short-term rentals seemingly fits the
definition of a “motel.” Finally, it is notable to contrast the descriptions of the R-1 through R-3
zones with the description of R-4 zoning, which suggests that some kind of temporary occupancy
might be permitted in two-family or multiple-family dwellings. The Ordinance clearly forbids
short-term rental uses of property in R-1 zones, irrespective of whether the Ordinance does so in
those exact words.

       As plaintiff notes, there was never any serious dispute that she actually was using the
property for short-term rental purposes. However, doing so was not permitted in the R-1 district



                                                -6-
at any time. Therefore, plaintiff is not entitled to continue doing so as a prior nonconforming
use, notwithstanding the Township’s failure to enforce its zoning requirements.

                                       V. PUBLICATION

         Unpublished opinions of this Court have no precedential effect under either stare decisis,
MCR 7.215(C)(1), or under the “first-out rule,” MCR 7.215(J)(1). Our Court Rules set forth a
list of standards for publication in MCR 7.215(B). We note that the Court Rule does not state
that an opinion may not be published for other reasons, only that it “must be published if” any of
the enumerated conditions are present. A party may request publication after an opinion has
been issued pursuant to MCR 7.215(D). However, we remind the bar that if they believe any
basis for publication exists, it is enormously more helpful—to us and to them—if they bring that
basis to our attention before the case is submitted. Advocating for publication, or at least the
possibility of publication, from the outset guarantees that we can properly consider any such
basis at the most appropriate and optimal time, and doing so also avoids the taint of self-
interested opportunism after issuance. We would likely look more favorably upon a publication
request where we have already had the opportunity to holistically analyze the potential merits of
publication in context, while analyzing the rest of the case.

        In this matter, plaintiff has brought to our attention the unpublished case of Concerned
Property Owners of Garfield Twp, Inc v Charter Twp of Garfield, unpublished per curiam
opinion of the Court of Appeals, Docket No. 342831 (issued October 25, 2018). This case is
unpublished, and we have not relied upon it in our substantive analysis. However, the existence
of this case supports that the issues presented in the current matter are of increasing importance
and commonality in Michigan, and that the bench and bar would benefit from the certainty that a
published opinion would bring. We conclude that publication of this matter is warranted under
MCR 7.215(B)(5).

                                       VI. CONCLUSION

        Plaintiff’s use of the property for short-term rentals was never permitted under the
Township’s R-1 zoning. This is consistent with case law establishing that commercial or
business uses of property, generally meaning uses intended to generate a profit, are inconsistent
with residential uses of property. See Terrien v Zwit, 467 Mich 56, 61-65; 648 NW2d 602
(2002). Plaintiff’s use of the property for short-term rental was not a prior nonconforming use
because it was never lawful pursuant to the Ordinance. The Township’s mere failure to enforce
the Ordinance does not confer upon plaintiff a right to continue violating the ordinance. Neither
does a statement made by any individual without the power to bind the Township, especially
where none of the statements clearly express an opinion that short-term rentals in R-1 zones was
affirmatively lawful. Accordingly, the trial court properly affirmed the Township Board’s denial
of plaintiff’s application for a short-term rental license.

       Affirmed. Defendant, being the prevailing party, may tax costs. MCR 7.219(A).

                                                            /s/ Amy Ronayne Krause
                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Colleen A. O'Brien

                                               -7-
