Brandau v. City of Grosse Pointe Park , 5 Mich. App. 297 ( 1967 )

5 Mich. App. 297 (1966) 146 N.W.2d 695

BRANDAU
v.
CITY OF GROSSE POINTE PARK.

Docket No. 125.

Michigan Court of Appeals.

Decided December 8, 1966. Rehearing granted and decided January 31, 1967. Opinion on rehearing filed February 2, 1967.

William J. McBrearty, Robert D. Dunwoodie, and Dykema, Wheat, Spencer, Goodnow & Trigg, for plaintiffs.

Richard D. Rohr (Bodman, Longley, Bogle, Armstrong & Dahling, and Michael B. Lewiston, of counsel), for defendant.

T.G. KAVANAGH, J.

Plaintiffs appeal from a dismissal of their cause of action below, wherein they sought to have defendant city's residential zoning ordinance decreed unconstitutional and void as applied to their property and to enjoin its enforcement.

Subsequent to the commencement of this action, an amendment to the zoning ordinance was adopted which regulated the use of such property for gasoline stations, and plaintiffs McBrearty filed a supplement to their bill, seeking to have this amendment declared invalid as well. We cannot pass on this question until it is shown plaintiffs sought to use the property in such a manner after the amendment and a denial of this use pursuant to the amended ordinance. Therefore, this opinion is limited to a determination of whether the lower court erred in granting defendant's motion to dismiss on the ground that the plaintiffs had not shown that the property could not be used for a purpose permitted under the ordinance prior to its amendment.

The plaintiffs' lots, situate in a five block area along Jefferson avenue, are classified residence A. The lots on the north side of Jefferson avenue in this area are zoned for, and/or used for commercial or municipal purposes. Those on the south side of Jefferson avenue are similarly zoned and/or used, except for the plaintiffs' property and two other vacant lots, both of which are municipally owned. Section 5.18 of the ordinance^[1] provided for specified types of buildings and for off-street parking facilities established and maintained in compliance with §§ 5.14 to 5.17. These sections refer to use of the property for parking as an adjunct to a permitted use of other property.

The record supports the trial court's finding that the property has no value for residential purposes. Thus the issue narrows to a determination of whether the off-street parking provision saves the constitutionality of the ordinance, so as to require an affirmance of the granting of defendant's motion for dismissal below.

We focus our attention first upon two oft-repeated and governing principles in the adjudication of contested zoning ordinances — here quoted from Warner v. City of Muskegon (1955), 344 Mich 408, 410:

"In determining the reasonableness of a zoning ordinance each case must be determined on its own facts. The ordinance must be reasonable and its reasonableness becomes the test of its legality."

Since the property here cannot be used for residential purposes, it follows that the permitted use of off-street parking adjunct to other property requires the owners of the property in question either to acquire other property so to use it, or to convey their property to the owners of such other property. Is it reasonable so to limit the plaintiff, absent a showing of any public need?

In determining reasonableness, Michigan case law has taken many factors into consideration. See Burrell v. City of Midland (1961), 365 Mich 136, and Alderton v. City of Saginaw (1962), 367 Mich 28, and the cases cited therein.^[2]

The composite picture painted by the evidence below portrays a situation wherein property owned for up to 50 years by some of the plaintiffs or their families has lain vacant and unproductive while adjacent property, put to commercial use, has furnished substantial income and profit for its owners, that under the unamended ordinance the property must continue to be "dead land" or be sold to adjacent land owners for their use for parking facilities at a price far below that which commercially-zoned neighboring property has realized. Although the value of the property if zoned commercial is not itself a controlling factor, it can properly be given consideration. See Alderton, supra.

We note in passing that the city has shown no public need for additional off-street parking, and that there is in fact, vacant municipal land nearby which could be devoted to such use. In Long v. City of Highland Park (1950), 329 Mich 146, the Supreme Court found inter alia that the school board or city had been negotiating to buy the property in question, presumably at its worth as zoned residential, which was a small percentage of its worth for business purposes. The court affirmed a holding that the ordinance which so restricted its use was unconstitutional and void when applied to the property. Here, the effect of upholding the contested ordinance would be to give the unearned advantage of a similar "windfall" to adjacent property owners without a showing of any public good to be served thereby.

We cite some particularly apt language from Long Island Land Research Bureau, Inc., v. Young (1957), 7 Misc 2d 469, 471 (159 NYS2d 414):

"It [the municipality] is under an absolute duty to make adequate provisions for such parcels. While it can limit their use, it cannot render them useless. * * * It cannot compel him [the owner] to sell to an adjoining owner nor can it require him to purchase additional contiguous property, if such is available."

The burden of proving the unreasonableness of the ordinance as applied to plaintiffs' property was sustained below, and the court erred in dismissing the cause of action. Since we find such application of the unamended ordinance unreasonable, it is void as applied to plaintiffs' property.

Reversed. No costs, as a public question is involved. (See opinion on rehearing below. — REPORTER.)

LESINSKI, C.J., concurred.

Although the late Judge WATTS heard oral argument on the above matter, he took no part in the decision in this case.

T.G. KAVANAGH, J.

Application for rehearing of this case having been granted, the last paragraph of the opinion filed December 8, 1966, is amended, after a consideration of the defendant's brief and plaintiffs' response thereto, and pursuant to GCR 1963, 820.1(7), to read as follows:

Reversed. The cause is remanded pursuant to GCR 1963, 504.2, for trial and a determination of the factual issues herein. Costs to abide final result.

LESINSKI, C.J., and LEVIN, J., concurred.

NOTES

[1] "In a residence A district no building or premises, except as otherwise provided in this chapter, shall be erected or used except for 1 or more of the following specified purposes.

"(1) Private dwellings.

"(2) Churches, public schools, and public libraries and museums.

"(3) Private schools, museums and educational institutions when permitted by the board of appeals as specified in section 5.43(6).

"(4) Accessory uses customarily incident to any of the above permitted uses, including not more than 1 private garage, or stable, for each lot, and including signs pertaining to the sale, lease or use of a lot, or building placed thereon, and not exceeding 6 square feet in the area of any 1 lot, except as provided in section 5.43(5). Dwellings for the use of domestic employees of the owners, lessees or occupants of the principal dwelling on a lot shall be considered accessory buildings; but, if containing a complete housekeeping unit or units, shall conform to all the height and yard requirements for dwellings in the district in which they are located.

"(5) Off-street parking facilities established and maintained in compliance with sections 5.14 to 5.17."

[2] Alderton, supra, p 33, is of further value to the instant case for its classification of the debatable question rule of Brae Burn, Inc., v. City of Bloomfield Hills (1957), 350 Mich 425, which defendant city relied upon.

"The debatable question rule presented in Brae Burn, supra, does not mean that such a question exists merely because there is a difference of opinion between the zoning authority and the property owner in regard to the validity of the ordinance. If this were the case, no ordinance could ever be successfully attacked."

ON REHEARING.