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Slippery Argument Spins its Wheels
by Ron Davis

A new strip shopping center under construction in Bronson, MI, may not be able to lease to a tenant who wants to install self-service gasoline pumps there.

Plans of the developer of the shopping center include a service station/convenience store among other tenants. But the land on which the center is located is in a B-3--"Community Commercial District" zone, and such a zone does not specifically include "gasoline stations" or "service stations" within the list of permitted uses.

On the contrary, the zoning laws of Bronson expressly require a special-use permit for service stations within a B-3 district. States one provision of those laws, "No land or building shall be used as a service station or an automobile repair shop unless in the B-3 District as a Special Land Use."

As pointed out by the developer, however, the B-3 zone does allow "retail sales" without restriction. The developer therefore argued that because gasoline would be sold at retail at the shopping center, the tenant qualifies under the zoning laws.

Moreover, he added, the retail sale of gasoline does not fall under the definition of "service station" because no vehicles would be serviced at the location.

The city of Bronson agreed with the developer and granted permission for the shopping center to include eight gasoline pumps on the tenant's leased premises.

A nearby competitor--a service-station operator--subsequently asked the courts to prevent the developer from carrying out his plans to install the gasoline pumps.

A Michigan appellate court, in ruling against the developer, explained, "The proposed retail sale of gasoline unquestionably is a special use for land located within the B-3 district as contemplated by the Bronson zoning laws. There is no requirement in the laws that the facility also provide repair or maintenance services, or that the building be used primarily for the retail sale of gasoline, to constitute a special use. Under the clear language of the laws and the ordinary understanding of the phrase 'gasoline service station,' the landowner was required to obtain a special-use permit for its proposed retail sale of gasoline." (Warren's Station v. Bronson, 615 N.W.2d 769 [Mich.App. 2000])

Decision: June 2000
Published: September 2000



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