Fremont Township v. McGarvie , 164 Mich. App. 611 ( 1987 )

164 Mich. App. 611 (1987) 417 N.W.2d 560

FREMONT TOWNSHIP
v.
McGARVIE

Docket No. 88807.

Michigan Court of Appeals.

Decided December 7, 1987.

Ransford, Crews & Burgess, P.C. (by Duane E. Burgess), for plaintiff.

Law Office of W.J. Drillock (by Richard A. Rinn), for defendants.

Before: DANHOF, C.J., and SHEPHERD and W.A. PORTER,^[*] JJ.

W.A. PORTER, J.

Defendants appeal as of right from an order of summary disposition in favor of plaintiff township. The order enjoined defendants from continuing to maintain a mobile home for residential purposes on property that was zoned for commercial use. We reverse.

The pertinent facts were established by the allegations of plaintiff's complaint that were admitted by defendants' answer. Defendants owned a parcel of property located within the Township of Fremont. This parcel, apparently exceeding five acres, is within a commercial district, as designated by the Fremont Township Zoning Ordinance. When defendants moved a mobile home onto the property to use as a residence, plaintiff denied defendants' request for a permit, requested removal of the mobile home, and eventually instituted this suit for injunctive relief.

Article V of the Zoning Ordinance governs the use of land in commercial districts. Section 5.01 of that article states in pertinent part:

No land shall hereafter be used and no building or structure hereafter erected, altered or moved upon any premises and used for other than one or more of the following uses, except as otherwise provided in this Ordinance:

* * *

I. Mobile Home Parks.

Since defendants' mobile home is not part of a mobile home park, but rather is a single unit, the use permitted by § 5.01(I) is inapplicable. The other permissible uses in § 5.01 do not contemplate a mobile home, but instead permit strictly nonresidential uses, e.g., retail businesses, barber shops, motels, banks, fraternal organizations. Therefore, Article V appears to unambiguously prohibit defendants' mobile home, unless the § 5.01 exception for uses "as otherwise provided in this Ordinance" is applicable.

Defendants rely on Article IX-General Provisions. Section 9.01 states:

Except as otherwise provided in this Ordinance, no land or existing building (subject to Section 9.02) and no new building or structure shall hereafter be located, erected, altered or moved upon any premises other than in conformity with the provisions of this Ordinance.

With respect to mobile homes, § 9.07 provides in pertinent part:

A. All occupied mobile homes shall be located in mobile home parks under the jurisdiction of the Michigan Department of Health, except as hereinafter provided.

B. The owner of five (5) acres of real estate may erect or move not more than one (1) mobile home upon such premises permanently, providing they meet the minimum floor space of seven hundred twenty (720) square feet.

* * *

E. Upon removal of the wheels from a mobile home and its placement upon a permanently constructed foundation, it shall not thereafter be deemed a mobile home, but a dwelling within the meaning of this Ordinance.

Defendants argue that § 9.07(B), when satisfied, exempts the use of a mobile home from all other use restrictions in Article V of the Zoning Ordinance. We agree.

The underlying principle of the proper construction of a zoning ordinance is to discover and give effect to the intent of the lawmaker. Bangor Twp v Spresny, 143 Mich. App. 177, 179; 371 NW2d 517 (1985). When interpreting the language of an ordinance to determine the extent of a restriction upon the use of the property, the language must be interpreted, where doubt exists, in favor of the property owner. Talcott v Midland, 150 Mich. App. 143, 147; 387 NW2d 845 (1985).

The use provisions in Articles III-Residential Districts, IV-Agricultural and Residential Districts, and V-Commercial Districts are identical and provide:

No land shall hereafter be used and no building or structure hereafter erected, altered or moved upon any premises and used for other than one or more of the following uses except as otherwise provided in this Ordinance. [Emphasis added.]

In contrast, the use provisions in Articles VI-Industrial Districts I-I, VII-Industrial Districts I-2, and VIII-Recreational Districts do not include a reference to other portions of the ordinance. We believe this is dispositive.

The use provisions pertaining to residential, agricultural and residential, and commercial districts allow sections of Article IX, including § 9.07(B), to be applied to such districts where they are not inapposite on their face. Further, since the article is entitled "General Provisions" and most of its sections, by their language, apply to several or all of the districts, it appears that § 9.07(B) was intended to apply to commercial districts as well as to residential and agricultural and residential districts.

Ambiguous statutes are interpreted as a whole and are construed so as to give effect to each provision and to produce a harmonious and consistent result. Hagen v Dep't of Ed, 154 Mich. App. 662, 670; 398 NW2d 485 (1986). This rule of statutory construction applies equally to zoning ordinances. Plaintiff's interpretation of the ordinance gives no meaning to the emphasized portion of the use provision in Article v. The trial court's order of summary disposition in favor of plaintiff, which permanently enjoined defendants from the continued residential use of their mobile home located in a commercial district, is reversed.

In light of our ruling, we will not address defendant's additional claims.

Reversed.

SHEPHERD, J., concurred.

DANHOF, C.J. (dissenting).

I would affirm the circuit court's order of summary disposition because subsection B of § 9.07 of the Fremont Township Zoning Ordinance was intended to apply to residential districts only. Exceptions in ordinances, like statutory exceptions, are construed narrowly. Fink v Detroit, 124 Mich. App. 44; 333 NW2d 376 (1983); Rzepka v Farm Estates, Inc, 83 Mich. App. 702; 269 NW2d 270 (1978). Subsection B provides that one mobile home may be placed on five acres of real estate provided that the mobile home meets the minimum floor space requirement of 720 square feet. Since 720 square feet is the minimum floor space requirement for structures located in residential districts, I think this is evidence that subsection B was meant to apply to residential districts. The minimum floor space requirement for commercial uses is 320 square feet. Subsection B should not be extended to commercial uses when its minimum floor space requirement is a clear indication that it was intended to apply to residential uses only.

In addition, subsection B allows the mobile home to be placed on the property "permanently." "Permanently" is not defined in the ordinance. However, subsection B may be read with subsection E, which refers to a mobile home on a "permanently constructed foundation." Such a "permanent" mobile home "shall not thereafter be deemed a mobile home, but a dwelling within the meaning of this Ordinance."

The majority's reading of the ordinance defeats the overall purpose of zoning, which is to keep like uses of land together and to separate unlike uses. Mobile homes are clearly required to be in mobile home parks in commercial districts. However, the zoning ordinance recognizes that in some cases a mobile home is more appropriately treated as a residential use when it is permanently placed on at least five acres of land and it has at least 720 square feet of floor space. Thus, it defeats the purpose of zoning if such a mobile home is allowed in commercial districts rather than restricted to residential districts.

The order of the circuit court should be affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.