Municipal zoning dispute; Statutory & ordinance interpretation; “Use”; “Accessory use”; Principal purpose of a lot; Anchor Steel & Conveyer Co v Dearborn; Zoning Board of Appeals (ZBA)

The court held that the trial court did not err by finding that plaintiff was permitted to construct a pedestrian pathway on a portion of its property. Defendant-township determined that plaintiff could not construct the pathway. The ZBA affirmed defendant’s position, but the trial court reversed and ordered that plaintiff be permitted to construct it. On appeal, the court rejected defendant’s argument that the trial court erred by holding that plaintiff was permitted to construct the pathway on the “R-1 zoned portion” of the property. It agreed with plaintiff that the trail is not a “‘use’ but rather an accessory use to an otherwise proper R-3 use, i.e., the apartment complex.” It found that “[p]laintiff has the better argument. The proposed pathway is serving the high-density residents of the adjoining zone, and a high-density use would not be permissible on the R-1 zoned portion. The pathway, however, does not constitute a ‘use’ under this Ordinance because it is not the ‘principal purpose’ of plaintiff’s lot. Rather, the pathway amounts to an ‘incidental and subordinate’ activity within the R-3 zoned apartment complex, i.e., it is an ‘accessory use.’” Further, although “the Ordinance follows permissive zoning, only permitting uses that are explicitly identified, the pathway does not constitute a ‘use’ for purposes of permissive zoning. Moreover, R-1 zones explicitly allow for accessory uses,” and this pathway “will be ‘incidental and subordinate to the principal use of the main building or lot[.]’” Finally, plaintiff correctly pointed “out that, under the Ordinance as written, it has the right to build a pedestrian pathway across the R-1 zoned portion of its property. The trial court did not err by reversing the ZBA’s determination.” Affirmed.