Barkey v. Nick , 11 Mich. App. 381 ( 1968 )

11 Mich. App. 381 (1968) 161 N.W.2d 445

BARKEY
v.
NICK.

Docket No. 3,514.

Michigan Court of Appeals.

Decided May 27, 1968.

Costello & Barkey, for plaintiffs.

Allan G. Hertler, for defendant city.

McGREGOR, J.

This is an appeal by right from an order of summary judgment granted by the Oakland county circuit court; the order being grounded on petitioner's failure to state a cause of action.^[*]

Abutting or near to the plaintiffs' residentially zoned property is a lot belonging to the defendants. Defendants wish to use their land as a parking lot for their restaurant, which is located on an adjoining lot. Defendants' lot was zoned residential and, according to the Royal Oak city ordinances, could not be used as a parking facility without the approval of the board of zoning appeals. When the board met, the brother of the defendant-husband represented the defendants. This brother also was a Royal Oak city commissioner. The Royal Oak city commission has the power of appointment to the board of zoning appeals.

At the meeting of the board of zoning appeals, the city commissioner-brother made representations as to the proposed use of the parking lot, made objections to evidence, brought information before the board, and presented rebuttal testimony. As a result of this meeting, a special exception was granted to allow defendants' land to be used as a parking lot, subject to certain conditions, such as the erection of a six-foot-high masonry wall.

An action was commenced in Oakland county circuit court in August, 1966, and at a show-cause hearing the judge suggested that the board of zoning appeals conduct a rehearing of the matter. On rehearing by the board of zoning appeals, the exception was upheld. Plaintiffs then filed an amended complaint, requesting that an injunction be directed against appellee city to restrain the use of the questioned property in a manner other than for residential purposes, an injunction restraining the appellee city from issuing a building permit inconsistent with the residential zoning classification of the lot, and an issuance of an order of superintending control reversing the action of the board of zoning appeals in the grant of the special exception.

Motions for summary judgment were filed by the city of Royal Oak and an order granting the motion for summary jugment was issued on March 20, 1967. This order stated that the city of Royal Oak board of zoning appeals had the authority to act on the application for special exception and that there was no failure of administrative due process in that the record disclosed no arbitrariness or abuse of discretion, and the only proper method of review is superintending control.

Plaintiffs contend that the zoning board, in the grant of the exception, was under coercion and duress, and acted so arbitrarily and capriciously as to amount to fraud, bad faith, and a denial of a fair and impartial hearing, resulting in the taking of property without due process of the law. Plaintiffs further submit that there was a misrepresentation of the true ownership of the lot in the application for a zoning exception and, therefore, the application and grant of a special exception were void. Plaintiffs also argue that the failure to admit proffered evidence of defendants' alleged misconduct was error, that the second hearing was void, and that a request for an injunction may in the same complaint co-exist with a request for superintending control.

The question with which we must deal is one of first — and, we hope, last — impression in this State. That question is: What is the status of a decision of an administrative board made pursuant to an argument by one charged in part with the appointment of that administrative body? Counsel refers us to Place v. Board of Adjustment of Saddle River (1964), 42 NJ 324 (200 A2d 601, 7 ALR3d 1434). This same question was summarized in that case. That court stated that the appearance of such a party was patently improper. It creates an abuse of trust imposed by the assumption of public office and creates a personal pecuniary interest conflicting with the fiduciary duty owed all members of the public. Further, it creates a doubt in the public mind as to the impartiality of the board's action. In Place v. Board of Adjustment of Saddle River, supra, that board's action was not raised as an objection. In the case before this Court, it is raised as an objection.

In Aldom v. Borough of Roseland (1956), 42 NJ Super 495 (127 A2d 190), the superior court of New Jersey was faced with a situation where members of the board determining the zoning had an interest in the matter before them. It was held that participation of interested parties in municipal action is sufficient to render the action voidable. A public office is a public trust and a fiduciary standard should be imposed on public officials.

We agree with the petitioner that there has been an imposition of duress on the members of the board, not as a matter of fact, but as a matter of law, and that, in consequence of that duress, the action of the board is void. The presence of the city commissioner before the board brings with it the presence and powers of his office. It is basic to due process that in all judicial and quasi-judicial proceedings the deciding power must not seek to serve other than that of the voters, taxpayers, members of the general public, justice, and due process.

The plaintiffs in this case seek to prevent the owner from using property in accordance with the special exception granted, and the city from granting permission for the construction of facilities necessary to carry out the purpose of this exception. It is a well-established principle of Michigan law that the courts will not impose their judgments in matters of discretion properly vested in local zoning boards or their equivalents. See Indian Village Manor Co. v. City of Detroit (1967), 5 Mich. App. 679, and cases cited therein. Here, we do not deal with lack of intelligence, discretion, judgment, or due regard for the beauty of the landscape. Here, we deal with the carrion surrounding a poisoned wellspring of justice. The parties in interest in this case, especially the public at large, have been denied their right to a fair hearing by the actions of their representatives.

In the event a new request for an exception is filed, the taint that requires a voiding of the zoning action in this case may well still exist; however, any absolute decision on a potential suit would be premature at this juncture. This Court is convinced that the city should not again prevail in any argument that misconduct of a party seeking to expand a publicly-oriented business, such as a restaurant, is immaterial to a rezoning. It is squarely within the concern of government that care be exercised to prevent enhancing the potential of those who would seek to profit from enterprises in ways which are offensive to the public conscience.

Accordingly, we reverse the trial court's decision granting the appellee's motion for summary judgment and remand the case to the trial court for further proceedings to determine the merits of plaintiff's complaint and injunction request, consistent with this opinion. The rulings of the board of zoning appeals are hereby declared void. Costs to appellants.

T.G. KAVANAGH, P.J., and FITZGERALD, J., concurred.

NOTES

[*] See GCR 1963, 117.