Legal question having to do with incorrect zoning

[zoos47]

What is the name of your state (only U.S. law)? Michigan

I was granted residential zoning by Breen township in Michigan. Unfortunately for me, my lot and my brand new home is in a "dam inundation" area. This means, if the dam were to break, there is a threat for "loss of life" in any dwelling on my lot.

The county of Dickinson owns the dam. They received multiple warnings from the Federal government about residential dwellings not permittable where my house would later be built (first warning came years prior to my home being built, and I have a copy of the the reports dating back to 2007). Seems as though the county never communicated the warnings to the township, and the township went ahead and gave me all zoning and construction permits to build my home.

Now the township is basically washing their hands of the problem. County is telling me that they are not responsible for knowing about the dam problems. They say their only duty in zoning is to make sure my building falls within my lot markers and set backs from the river are respected.

Is this correct? Does the township have no liability here? Yes, the county owns the dam, but it seems that the township should have some level of responsibility in safely zoning home sites.

Any help appreciated.
Thanks

 

[OHRoadwarrior]

You should have determined the flood zone, prior to building. You may have violated the law.

http://www.legislature.mi.gov/(S(ti2kiu45evengdztupylbxju))/mileg.aspx?page=getObject&objectName=mcl-324-3104

 

[justalayman]

You should have determined the flood zone, prior to building. You may have violated the law.

Michigan Legislature - Section 324.3104

I need to do some more research but I don't think a dam inundation zone is considered the same as a flood plain for the federal or state plans. A floodplain, simply put, is an area the is at risk of flooding simply due to high levels of precipitation. A dam inundation zone, I believe, is the area subject to damage in the event of a dam failure. While the flood plain is subject to regular flooding, hopefully, the dam inundation area is never subject to flooding for the reason they are concerned with.

 

[zoos47]

I am not in a floodzone. I have the latest Fema Maps and my house is visable and clearly outside the flood plain/zone. Additionally, I am far outside the legal setbacks from the river. The issue is not with a "flood zone/plain". It is with a "dam inundation" area... meaning, if the dam breaks, it will wash away homes and kill people.

Again, federal government made attempts to intervene in the situation starting in 2007. County ignored and the condominium development continued. 2010, I was was granted residential zoning.

County owns the dam and was receiving warnings from the Fed. They did not communicate to the township. Is the township liable in the least for the problems here?

Thanks

 

[justalayman]

Every time you speak of the statements or actions taken by the feds, you make it appear the statements were not official directives but just advisory. Did the fed make any hard and fast determinations in this or were they simply trying to persuade the county/township to not allow building in the zone without taking any official actions?.

 

[Mass_Shyster]

Is the township liable in the least for the problems here?

What problems are you having?

• Inability to obtain occupancy permit?
• Insurance rates astronomical?
• Inability to sell property?
• Living in terror of a dam break?

It seems the liability for damage is on the owner of the dam if the dam breaks.

 

[zoos47]

Thanks for replies.
Feds sent the doc to the county telling the county that they observed a development being constructed in downstream from the dam (at the time, the developer was probably putting in electric lines, road, etc). The fed mentioned that the dam classification was not sufficient to accomodate for residential dwellings. If dwellings were intended, the dam would have to be upgraded to a new classification.

In a more recent report from the feds, they site the 2007 report and the importance of addressing the issue. In this recent report, they also site my home and show pictures of my house. in this recent report, they say that the dam must be upgraded to new classification OR the county has to remove the "threat for loss of life"... my home.

And regarding the other question...
two things I am worried about... my home value and taxes. I guess I am worried that the value of my home is now $0, or very close to it. If I wanted to sell, I would not have any chance. Additionally, the township is not cutting me any slack with taxes. Seems if my property is worthless or close to it, they should throw me a bone and make special consideration for my taxes (seeing as the town is partially to blame). But the township is washing their hands of this and blaming the county. They say that they are not responsible for knowing about dam inundation areas. Township says they are only responsible for making sure the building is within lot lines when they zone.

Is the township completely free of any liability here?
Thanks

 

[zoos47]

PS, I already have my occupancy.
Thanks

 

[justalayman]

so, what are you trying to accomplish here?

when did you become aware of the feds position on the matter?

 

[Mass_Shyster]

Is the township completely free of any liability here?

At first blush, it would appear so. In order to find liability in the township you would need to prove that they had some duty to analyse the suitability of the land for the intended purpose. That's not the reason for zoning. Zoning is done to keep similar uses in the same location. That way you don't have people building homes in industrial areas, and heavy industry in residential neighborhoods.

You've stated that the Feds say that the County must upgrade the dam or remove the threat for loss if life. So what happens if they do neither? That's what you need to find out. It sounds like the County may end up buying your home at some point, unless it's cheaper to upgrade the dam.

 

[zoos47]

Trying to accomplish.. I do hope that I can earn a reduction in my taxes until this gets straightened out. I hope that's not too much to ask. I hope to be a little more educated in what the township/county's roles are in zoning. I want to know what the government can and cant get away with when they mess up.

I found out about this in the early spring/late winter 2011. I found out just prior to getting my final inspections. I called the construction code office and they told me that a "freeze" was put on my permit. This was the time that the Fed stepped in and demanded some action of the county. I called around and was able to get my hands on the Federal dam reports at this time also. There were two reports I got... one from 2007 when the fed originally warned the county about the development. And then a report from early this year where they demand some action of the county.

 

[zoos47]

At first blush, it would appear so. In order to find liability in the township you would need to prove that they had some duty to analyse the suitability of the land for the intended purpose. That's not the reason for zoning. Zoning is done to keep similar uses in the same location. That way you don't have people building homes in industrial areas, and heavy industry in residential neighborhoods.

You've stated that the Feds say that the County must upgrade the dam or remove the threat for loss if life. So what happens if they do neither? That's what you need to find out. It sounds like the County may end up buying your home at some point, unless it's cheaper to upgrade the dam.

Thanks for the clerification on zoning. That does help. I woudl have thought that zoning also takes safety into consideration. Guess I was wrong. And yes, you are right, I think they will ultimately buy my home and condemn the lot. I heard some figures that it will cost over 2 milliion to fix the dam. I have the only house and there are about 8 lot owners that are affected. Seems like the cheaper of the two options

ONe other question... if they do buy me out, I am under the impression that I can sue for any monetary losses. So above and beyond the home value/appraisal, I can also sue for travel expenses (from Chicago to the U.P. over the course of two years), time/monely lost from work, taxes paid, interest on construction loans, etc. Does that sound about right?

Thanks much

 

[Mass_Shyster]

if they do buy me out, I am under the impression that I can sue for any monetary losses.

I suspect part of the buyout will be a release of any further liability.

 

[zoos47]

I suspect part of the buyout will be a release of any further liability.

Thanks Steve!