Plaintiff owned property zoned C-3, which permitted property to be used for warehousing, storage, distribution and other similar uses. Chemico leased the property and in 1998, was granted a use variance to use a portion of the property for its paint-cleaning business.  In 2002, Chemico vacated the property and Plaintiff subsequently leased it to Oakland Office Interiors for the purpose of storing office furniture.

Defendant posted a cease and desist order on the property because Plaintiff failed to obtain a site plan approval that, Defendant argued, was necessary due to a change in the principal use of the building.  Specifically, Defendant alleged the building's use was light industrial under the Chemico variance and in order to use the building for storage purposes, which would constitute a change in the principal use, a site plan approval was required.   In response, Plaintiff filed a complaint arguing that despite the use variance, the principal use of the building never changed and no site plan approval was required.

The trial court granted summary disposition in favor of the Defendant, but the Court of Appeals reversed because of the City's failure to provide evidence to show that the principal use of the property actually changed.  While the variance established that Chemico requested permission to operate a paint-cleaning operation on a portion of the property, it did not show that the "paint-cleaning operation was the principal, primary or chief use of the property."

Establishing whether or not a variance would alter the principal use of a building could be supported by documenting that fact during the variance request process.  Here, the City only had "a two-sentence letter" from a City representative to Chemico stating that the City Planning Commission approved the site plan review subject to no conditions.  For more information about this process, please contact us.