The County Press

Suit filed against dragway owner, Mayfield Township




A sign attached to the fence outside the dragway suggested the Roods Lake Road facility will open the first week of May. Photo by Jeff Hogan

A sign attached to the fence outside the dragway suggested the Roods Lake Road facility will open the first week of May. Photo by Jeff Hogan

MAYFIELD TWP. — Since last summer when new concrete and asphalt construction was underway at the Lapeer International Dragway in Mayfield Township by new owner Bill Jennings, about a dozen neighbors have challenged whether the work was legal and permitted to proceed.

The dragway opponents assert the already completed construction, as well as approved plans to build a 4,000-plus seat bleacher complex, should not have been allowed under their understanding of the non-conforming use ordinance that has allowed the dragway to operate in an otherwise residential and agricultural area since 1968. They claim the new work is an addition and new use for the dragway that adversely affects their lives and property values, while Jennings and his legal counsel contend they are operating within the perimeters of the nonconforming use ordinance.

And that’s where the parties clash on the matter — their interpretation of the non-conforming use ordinance that is assigned to the property and not the owner.

About 40 shipping containers are to be incorporated into the construction of bleachers to surround three sides at the start of the quarter-mile track at the Lapeer International Dragway on Roods Lake Road in Mayfield Township. Photow by Jeff Hogan

About 40 shipping containers are to be incorporated into the construction of bleachers to surround three sides at the start of the quarter-mile track at the Lapeer International Dragway on Roods Lake Road in Mayfield Township. Photow by Jeff Hogan

Unsuccessful in their bid to halt the work, 13 township residents on March 25 filed a multi-count civil suit in 40th Circuit Court in Lapeer against Bill Jennings (A2B Properties, LLC), Mayfield Township and the Mayfield Township Zoning Board of Appeals.

The plaintiffs and defendants have until May 19 to submit written responses to the claims of the lawsuit to the Court.

Michael Gildner, Mayfield Township’s attorney will serve as co-counsel regarding the suit along with an attorney hired by the township’s insurance carrier.

“I don’t think this comes as a surprise to anyone involved in this process,” Gildner told The County Press on Wednesday. “I think we all knew it would to come to this…It all involves the understanding of what is and isn’t allowed to occur under a non-conforming use. In this sense I would welcome the court to address this, because I think it’s the only way there’s going to be any resolve to the question.”

Jennings is confident the Court will find the suit allegations frivolous. “It’s a last-ditch effort by the same old 13 people who have been opposed from the beginning. Some people just don’t know how to take defeat,” and cautioned them “to be careful what you ask for. They’ve been poking all sort of things at me, but we can poke back too.”

His attorney Dean Elliott commented, “I think it’s a long shot, and when we submit our written response we’ll ask the judge to dismiss it (lawsuit). These people don’t have standing to bring these types of claims.”

Among their allegations, the Mayfield Township residents who filed suit claim the dragway was only allowed to operate on Wednesdays from 1 p.m. to dusk, on Sundays and certain holidays — and contest the stated plans by Jennings to operate six days a week including up to 1 a.m. on Saturdays and holidays. The added hours of operation, still to be approved by township officials, argue the plaintiffs constitute an expanded use and therefore should not be allowed. The residents claim that the township has “repeatedly maintained the position that no modifications be made to the non-conforming use.”

The residents assert that in June 2018 the township’s thenbuilding and zoning official notified Jennings that any modifications to the facility should be discussed with the township prior to any work being completed. “This was to avoid any unnecessary expenditures of monies for improvements which might not be authorized under the limited terms of the permitted non-conforming use,” reads the suit.

The residents named the township’s Zoning Board of Appeals (ZBA) in their suit in part because they contend the ZBA shouldn’t have granted a variance to Jennings to permit bleacher construction to exceed the township’s 25-feet height maximum ordinance. They argue a Zoning Board of Appeals may grant a variance for “practical difficulties for none-use variances…or unnecessary hardship for use variances.” The residents claim Jennings was “not a proper candidate” for a variance because the “necessity” that caused the need for a variance was self-created. “The dragway had existing bleachers to which the defendant was not required to add.”

The plaintiff’s suit says, “There was no evidence presented at the ZBA hearing on Jenning’s request for a variance that established that the bleachers could not be used for the continued operation of the dragway.”

Township residents that filed suit also contend the dragway and its improvements are a “nuisance” to the enjoyment of their properties. The ability to enjoy their property, the suit says, “is being significantly and detrimentally interfered” by Jennings and the township’s “acquiescence to, and enabling of, such illegal use.” The suit claims that the actions by Jennings and the township “constitutes an invasion that has resulted in significant harm to the plaintiffs.”

The nuisance charge continues, “The utilization of the dragway facility introduces significant and unreasonable noise, lights and fumes which, in turn, upsets the peaceful use and enjoyment of the plaintiff’s real property and, thus constitutes a nuisance per se.”

The plaintiffs claim Jennings has abandoned the nonconforming use “by plowing under the drag strip and utterly replacing it. Jennings (A2B Properties) did not repair or modify the drag strip but, instead, utterly replaced it; thus terminating the prior nonconforming use.”

The residents named in the suit also seek declaratory relief citing “an actual controversy between the parties” for the following reasons identified in the suit:

• Did Jennings (A2B) terminate its non-conforming use when it removed the previous drag strip and installed a new one?

• Is the conduct of Jennings in seeking to operate the facility six days a week, plus holidays and special events, instead of two, and expansion of the use enjoined by Michigan law and the subject ordinance?

• Is the destruction of and installation of new bleachers and expansion of the nonconforming use?

• Did Mayfield Township properly grant the variance for the height of the structure (bleachers) when the variance as requested as an accessory to a non-conforming use?

• Did the township ZBA err in granting the variance when the need for the variance was self-created?

“A declaratory judgement is necessary in this matter in order to guide the litigants’ future conduct and preserve the litigants’ legal rights. The facts in this matter establish that the parties have adverse interests, which necessitate the sharpening of this issues raised,” stipulated the declaratory relief count.

Count four claims the “township’s failure to follow its own zoning ordinance and its failure to adhere to applicable Michigan law on nonconforming uses constitutes a regulatory taking. Specifically, “the township’s approval of a variance and approval of a site plan for an impermissible expansion of a non-conforming use, constitutes improper regulations, improperly and unfairly burdening the plaintiffs and deprives them of all beneficial or productive use of their land.”

In addition, claims the suit, “the conduct of the dragway in operating the facility outside the bounds of its limited nonconforming use will cause increased adverse impact from light, noise and fumes, again diminishing the value of the plaintiff’s property.”

The residents assert they are entitled to damages for the township’s “taking of their property.”

The plaintiffs also seek injunctive relief against Jennings, claiming they will suffer irreparable harm without an adequate legal remedy rendering injunctive relief appropriate.

Count six identified in the suit claims a violation of the Freedom of Information Act (FOIA). It alleges the township failed to fully respond to the plaintiff’s FOIA request for any and all electrical permits issued to the dragway.